The contention that the plaintiff’s claim exceeded the jurisdiction of the justice is without merit. The logs were scaled by the defendant’s scaler. The defendant admitted upon the trial that the scale made by his scaler was correct. The plaintiff adopted that scale, and the amount alleged in the complaint and claimed by the plaintiff is according to the scale so made by the defendant’s scaler. The facts stated bring the case within the statute which declares that every justice of the peace shall have jurisdiction of “actions arising or growing out of contract, express or implied, wherein the debt or balance due or damages claimed *552shall not exceed $200.” Subd. 1, sec. 3512, Stats. 1898. As recently held by this court, the term “balance due,” as thus used, “does not necessarily mean a balance agreed upon, so that the action cannot be maintained unless there had been such an agreement, but merely means the remainder after deducting proper credits.” Prairie Grove C. M. Co. v. Luder, ante, p. 20, 90 N. W. 1085. See, also, Martin v. Eastman, 109 Wis. 289, 290, 85 N. W. 359. We must hold that the justice had jurisdiction of the cause, and that the circuit court acquired jurisdiction by the appeal.
2. The principal controversy was as to whether the contract included the timber on the east side of the creek. The jury found that it did not. Error is assigned because the court refused to change the answer of the jury from the negative to an affirmative. But the evidence of the plaintiff tended to support such finding of the jury, notwithstanding the evidence on the part of the defendant was to the contrary. There was no error in refusing to- malee such change. The same is true as to the refusal of the court to change the answer of the jury to the sixth question from the negative to the affirmative. The evidence was contradictory as to whether the contract was to be accepted by the R. Conner Company or not, and hence that question was for the jury to determine.
3. It is claimed that there was error in charging the jury as to the burden of proof. The court was requested to instruct the jury on that subject. The defendant claimed that the burden of proof was on the plaintiff as to all material questions in the case. The plaintiff claimed that the burden of proof was on the defendant as to whether the contract included the timber on the east side of the creek and as to whether the plaintiff had failed to perform the contract. After hearing such claims, the court charged the jury as follows : “The court concludes to say that the burden is not on either party as to any of these questions; that you are to *553answer these questions according to the facts, — according to the weight of the evidence. The burden is on neither party.” While the plaintiff’s cause of action is based upon contract, yet his complaint fails to allege the terms of the contract. The answer contains a general denial. It also' alleges, by way of a separate defense, that the services of the plaintiff were rendered under a special contract which the plaintiff had failed to perform, as indicated in the statement of facts. The plaintiff was a witness in his own behalf, and testified to the effect that the services for which he claimed judgment were under a contract with the defendant for cutting, skidding, and hauling what logs there were on the west side of the creek; and that the contract did not include the logs on the east side of the creek; and that the E. Conner Company had nothing to do with the contract; and that he did complete the contract as thus made. The defendant denied both propositions, and insisted that the contract included the timber’ on the east side of the creek, and that the completion of the job was to be such as would be acceptable to the E. Conner Company. On the trial the defendant conceded that, if the contract only included the timber on the west side of the creek, then it had been completed. The contract under which the plaintiff claims the right to1 recover having thus been brought into the case, we are constrained to hold that the burden of proving the complete performance of that contract was on the plaintiff. It follows that the instructions thus given to the jury were erroneous.
» By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.