BURDEN OF PROOF. — Where the plaintiff would be entitled to recover on proof of the allegations of the complaint and the defendant seeks to avoid recovery by affirmative allegations of new matter: Held, That the burden of proof as to such affirmative allegations rests upon the defendant.

This is an action to recover 22,684.94 pesos, Mexican currency, balance due on account. The only item of the account in dispute is the price at which 7,718.99 piculs of sugar should be charged to the defendant and appellee, and credited to the plaintiff and Appellant.

Maria Lopez, the plaintiff, alleges that she entered into a verbal contract with the defendant to deliver to him certain sugar, which he obligated himself to store in Iloilo until he received instructions from her to sell, whereupon he was to credit her account with its market value in Iloilo on the day upon which such instructions were communicated to him; that in accordance with the terms of the agreement she delivered to the defendant 7,713.99 piculs of sugar; that she gave instructions to sell on the 29th of September, 1904; that on the 29th day of September, 1904, the market value of the sugar she thus delivered was as follows: 1,085.13 piculs of No. 1, at 5.35