Appellant sought to recover on the sole ground that appellees had borrowed $300 from her and failed to repay the same. Appellees denied that they had borrowed the money from appellant. This was the only issue involved in the trial, *Page 832 and it was submitted to the jury in appropriate instructions.
In instruction No. 1, given at the instance of appellant, the court told the jury that if the plaintiff "did lend to defendant $300 to apply in payment of a note they owed one B. O. Ward for an indefinite time, and she has demanded payment therefor, before starting this suit, and the same is not paid, you will find for plaintiff for her debt and interest." It is true that appellees, after denying that they had borrowed the money of appellant, went further and stated that it was advanced to them by appellant merely for the purpose of use in payment of the Ward note, and that they were to assign the claim to appellant and probate it against the estate of appellant's husband, but those allegations were not essential part of the defense, the question at issue being whether or not appellees borrowed the money. It being admitted that the sum of money named was in fact turned over to appellees, the substance of the agreement was the turning point of the question of the liability of appellees for the payment of the money. The real issue was whether or not the money had been borrowed from appellant by appellees, for that was the only theory upon which appellant sought to recover, and upon no other theory was appellant entitled to recover in the present action. She did not sue upon any allegations of loss or damages by reason of the breach of the agreement to probate the claim against her husband's estate and to assign the claim to her. Indeed, the assertion of such a right of action would have been inconsistent with the right of action actually asserted in the complaint to recover for borrowed money. If appellant had sued for breach of the contract to assign the claim, then other elements might have entered into the defense.
My conclusion is that the court correctly submitted the only issue in the case to the jury, and that there was no error in refusing other instructions requested by appellees. *Page 833
I am also of the opinion that the majority have reached the wrong conclusion in regard to the burden of proof. The issues in the case being whether or not appellees borrowed the money, the burden of proof rested upon the appellant to prove her case by showing that she lent the money to appellees. It was not a part of appellees' defense to show what became of the money or whether or not they performed a collateral agreement with reference to the disposition of it. All that appellees had to do was to meet the issue as to the money being borrowed, and the burden of proof on that issue did not rest upon them. No affirmative defense being pleaded, the burden of proof never devolved on appellees.
Mr. Justice HART concurs in the views herein expressed.