To entitle a plaintiff to recover for goods sold and delivered, it is incumbent upon him to prove the sale as Well as the delivery. As to both facts, the burden of proof rests upon him. Nor does the mere fact of delivery, when proved, raise any presumption of sale. Delivery is quite as consistent with a bailment as with a sale, and no more establishes one than it does the other. A plaintiff, then, in order to a recovery, must not only prove that the goods were delivered to the defendant, but that the transaction was a sale, and not otherwise.
The instruction complained of in this case, in effect, relieved the plaintiff from the burden of making any affirmative proof, in the first instance, that the goods in question were sold to the defendants. It laid down the proposition, in substance, that if the delivery was proved, then, as the defendants were insisting that they had received a portion of the goods for sale on commission, the burden of proving that such was the transaction rested on them, and that if they failed to make such proof, then, as to the goods in relation to which such claim was set. up, the jury should find the issues for the plaintiffs. Here, as will be perceived, the only affirmative fact which the plaintiffs were required to prove in order to a recovery was the delivery. This, coupled with a failure by the defendants to establish this particular defense, was all the instruction held to be necessary to entitle the plaintiffs to a verdict.
We see no basis for the claim that the defendant, by setting up this defense, relieved the plaintiffs from the burden of any proof which they would have been required to make had such defense not been made. It was not a defense in the nature of a confession and avoidance, but was only tantamount to a traverse of the plaintiff’s allegation that the goods had been sold. It undoubtedly was an assertion of new and distinct facts, but such facts were material only so far as they tended to establish the negative of the proposition upon which alone the plaintiffs could recover, namely, that the transaction with the defendants was a sale of the goods.
The burden of proving any fact lies upon the party who substantially asserts the affirmative of the issue. The true test by which to determine where the burden of proof lies, is to consider which party would be entitled to succeed if no evidence were offered op either side, for the burden of proof lies on the party against whom, in such case, the verdict ought to be given. Here the real issue was as to whether there had been a sale, and the evidence offered tending to prove a consignment for sale on commission, was material only as it tended to prove the negative of that issue. The burden of proof, then, was clearly on the plaintiffs, and the instruction to the contrary was erroneous.
For the error in giving said instruction, the judgment will be reversed and the cause remanded.
Judgment reversed.