after making the foregoing statement, delivered the opinion of the court:

Defendant assigns as error the refusal of the court to instruct the jury that, “if the evidence is equally balanced, your verdict must be for the defendant, no cause of action.” One of the defenses set up by defendant in this case was the alleged failure of plaintiff to ship the goods mentioned as agreed upon at the time they were ordered, and that they arrived too late for the fall trade, and defendant was thereby unable to dispose of them. This was new matter. The burden of proving the issue raised by it was upon the defendant. As the foregoing request is not limited or confined to the issues made in the allegations of the complaint the jury might have been misled thereby and applied it, had it been given, to *458tbe issues raised by tbe affirmative matter in tbe answer as well as to tbe issues of tbe complaint. Therefore tbe court did not err in refusing to grant it. (Hickey v. Rio Grande Western Ry. Co. [Utah], 82 Pac. 29.)

Defendant also requested tbe court to instruct tbe jury as follows: “Tbe burden is upon tbe plaintiff to prove all of tbe material allegations of its complaint by a preponderance of tbe evidence, and if plaintiff fails to prove all of those material allegations by such preponderance, or if tbe evidence is equally balanced, then your verdict must be for tbe defendant, no cause of action.” This request correctly states tbe law„ Tbe defendant having denied tbe material allegations of tbe complaint, tbe burden of proving such allegations by a preponderance of tbe evidence was on tbe plaintiff, and if it failed to do so', or if tbe evidence on those issues were equally balanced, tbe plaintiff could not recover, and the defendant was entitled to have tbe jury so instructed. It is urged, however, that tbe request was fully covered by the following instructions which were given in tbe case: “(6) I further charge that tbe burden of proof of tbe sale of said goods to tbe defendant, as set out in bis complaint, is upon tbe plaintiff.” Tbe court in tbe same paragraph, after inviting attention to some of tbe affirmative matters set up' as a defense in tbe answer, proceeded to further charge the jury as follows : “And be (defendant) having alleged such fact affirmatively, tbe burden is upon him, to establish such an agreement between him and tbe plaintiff for tbe return of said goods by a preponderance of tbe evidence.” Tbe court in its next succeeding instruction defines what is meant by a “preponderance of tbe evidence,” as follows: “By a preponderance of the evidence is meant the greater weight of the evidence; that which is more convincing of its truth.” These instructions when read together do not correctly state tbe rule respecting the degree of proof necessary for a plaintiff to produce in support of tbe allegations of bis complaint to entitle him to recover, when, as here, tbe defendant introduces evidence tending to rebut and overcome tbe evidence produced by tbe plaintiff. Tbe jury was instructed that tbe burden was upon tbe *459plaintiff to prove the allegations of bis complaint, and that tbe burden was upon tbe defendant to prove by a preponderance of tbe evidence tbe affirmative matter in bis answer. Tbe jury might well have understood from these instructions as given that, while tbe burden was upon the plaintiff to prove tbe allegations of his complaint and to malm out a prima facie case in chief, yet it was not indispensable to entitle him to recover that the evidence on these issues, when the case was finally submitted, should preponderate in his favor. Plaintiff cites and relies upon the case of Hickey v. Railway Co., supra, in support of his contention that the request was properly refused. In that case the defendant requested the court to instruct the jury as follows: “You are further charged that the mere fact that the accident happened is not sufficient proof to charge the defendant with negligence. The burden of proving negligence rests on the party alleging it, and, when a person charges negligence on the part of another as a causé of action, he must prove the negligence by a preponderance of the evidence. And in this ease, if the jury finds that the weight of the evidence is in favor of the defendant, or that it is equally balanced, then the plaintiff cannot recover, and you should find the issues for the defendant.” It will be observed, as was pointed out in the opinion written by Mr. Justice Straup in that case, that the request in terms applied to the issues of the entire case, those raised by the allegations of contributory negligence in the answer as well as the issues upon the complaint; whereas in the case under consideration the request was limited to the allegations of the complaint. Moreover, in that case the court fully in- ' strueted the jury on all the issues raised by the pleadings in the case, and among other things charged the jury that: “The burden of proof is upon the plaintiff in this case, and it is necessary, before he is entitled to a verdict at your hands, that he should establish by a preponderance of the evidence the allegations of his complaint” It thus appears that the jury was instructed in clear and unequivocal terms that the burden was upon the plaintiff to prove the allegations of his complaint by a preponderance of the evidence, which was *460not done in this case. We are of the opinion that the defendant was entitled to have the request or an instruction embodying the same principles, given to the jury, and that it was error for the court to refuse.

The judgment is reversed, and a new trial ordered, costs of this appeal to be taxed against respondent.