ROSS, J.
(After Stating the Facts as Above.) — The plaintiff’s first contention is that the special verdict of the jury, to the effect that he “did not, immediately after entering into lease with defendant, put the new pumping plant, consisting of the new well and engine, in good working condition,” is not justified by the evidence. His claim is that the' plant was turned over to the defendant in good working condition, and that there is absolutely no evidence to the contrary. We cannot agree with the plaintiff that there was no evidence to support this special verdict. Several witnesses testified that what is known as the new pumping plant was in bad condition when defendant took possession of the leased premises, some of them entering into a detailed description of defects in the pump. True, others testified in behalf of the plaintiff that it was in good condition. Its condition, therefore, was sharply controverted, and the disputed fact was very properly submitted to the jury. In such circumstances, the rule is that we will not disturb their verdict. Otero v. Wheeler, ante, p. 50, 185 Pac. 359; McCord v. McCord, 13 Ariz. 377, 114 Pac. 968; Southern Pac. Co. v. Hogan, 13 Ariz. 34, 29 L. R. A. (N. S.) 813, 108 Pac. 240; Cunningham v. Costello, 19 Ariz. 512, 172 Pac. 664; Rouillier v. Schuster, 18 Ariz. 175, 157 Pac. 976; Leadville Min. Co. v. Hemphill, 17 Ariz. 146, 149 Pac. 385.
The same complaint is made of the special verdict to the effect that defendant “kept the new plgnt in [381]*381good condition and complete repair during the time he occupied the premises under lease.” There was substantial evidence to sustain this finding of the jury, and it also must stand as settled.
The finding of the jury that plaintiff breached his promise to put the “old pumping plant” in good working condition is not questioned by plaintiff. Neither is the one that the defendant expended $500 in an attempt to place the pumping plants in condition for use, or the one that it would have cost $2,000 to put the pumping plants in good working condition.
The next error assigned is that the court, in instructing the jury, placed the burden of proof upon plaintiff to show that defendant did not keep the pumping plants in good condition and complete repair ; it being contended that the burden on that issue was upon the defendant. Both the plaintiff and defendant were asking for affirmative relief, each claiming that he had kept and performed all the conditions of his contract, and that the other had breached such contract. The plaintiff, on his part, in three causes of action against defendant had alleged as the gravamen of his complaint that defendant had failed to keep the engine, pumping plants, fixtures and things upon or about said farm in good condition and complete repair. This allegation is repeated by plaintiff in one form or another in each of his three causes of action. Having alleged this breach by defendant as the foundation of his causes of action, he assumed the burden of establishing his allegations. It was up to him to make out his case, and to do so it was incumbent upon him to introduce evidence sufficient to satisfy the triers of the issue that he had not only performed his part of the contract, but that defendant had failed in the performance of his agreement in the particular respects alleged in his complaint as the basis of his causes of action. The general rule [382]*382is that he who asserts an affirmative has the burden of proving it. 10 E. C. L. 898, § 48; 16 Cyc. 926. From his standpoint as a plaintiff, it was incumbent upon him to establish his case as made by his pleadings by a preponderance of the evidence, and, viewing the instruction as applied to plaintiff’s case, it was not only unobjectionable but proper.
The defendant, as to his counterclaim, occupied the position of a plaintiff and was under the same obligation as to the burden of proof as the plaintiff with reference to his contention. The duty of sustaining the material allegations of his counterclaim, including the breach as alleged by a preponderance of the evidence, was upon him. Whether the peculiar circumstances of this case should influence a modification of this rule or not, we will hot undertake to say ^ — believing it not to be before us — for the reason the failure of the court to instruct as to where the burden of proof lay in regard to defendant’s counterclaim was not made a ground for new trial in motion for new trial, and, further, it is not assigned as error in plaintiff’s brief. No request for such an instruction was made, and the omission was not called to the court’s attention in the motion for a new trial.
While our statute makes it the duty of the court to charge the jury, paragraph 514, Civil Code, it also gives to either party the right to present “such instructions as he desires to have given to the jury.” Paragraph 516, Civ. Code. We think a fair construction of these provisions should require a party, where the instructions given by the court fail to cover all issues or phases of the case, to request further instructions on the omitted features before he jcould assign such omission as error. This seems to be the generally, adopted rule by the courts.
“It is a rule of very general application that if instructions given are correct as far as they go, it can[383]*383not be assigned as error that the court omitted to instruct on all points involved in the case if the attention of the court has not been directed thereto by special requests for instructions on those points. As was said in an early decision in which Justice STOBY wrote the opinion, it is sufficient that the court has given no erroneous directions. ‘ If either party deems any point presented by the evidence to be omitted in the charge, such party may require an opinion from the court upon that point; if he do not, it is a waiver of it.’ If the instructions given are not sufficiently full, or not sufficiently specific, it is held to be the duty of the party who considers himself aggrieved thereby to request fuller or more specific instructions from the court. In the absence of such request, there is no basis for an assignment of error to the giving of such instructions.” 38 Cyc. 1693.
The two foregoing assignments are directed to errors which, if well taken, would require a retrial of all the issues whether tendered by plaintiff in his several causes of action or by defendant in his several counterclaims. Their rejection for want of merit, however, disposes of the plaintiff’s complaint and results in an affirmance of the trial court’s judgment, “That the plaintiff have and recover nothing on his second amended complaint.”
It is nest contended by plaintiff that the partial new trial should have been extended to and included the item for refusal to renew lease and issues related thereto, because, as he claims, he cannot be held liable on this count until and unless his liability is established for the item of crop failure for the season 1917, and, since the question of this liability is to be retried, the one for refusal to renew lease should also be ordered retried. He insists that these two items of damages grow out of and depend upon the same issues, and that the order granting a new trial as to one in effect vacated and set aside the findings of fact supporting the other.
[384]*384The gravamen of the charge as to crop failure and consequent damages for the season of 1917 is the neglect of plaintiff to put pumping plants in good working condition.
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ROSS, J.
(After Stating the Facts as Above.) — The plaintiff’s first contention is that the special verdict of the jury, to the effect that he “did not, immediately after entering into lease with defendant, put the new pumping plant, consisting of the new well and engine, in good working condition,” is not justified by the evidence. His claim is that the' plant was turned over to the defendant in good working condition, and that there is absolutely no evidence to the contrary. We cannot agree with the plaintiff that there was no evidence to support this special verdict. Several witnesses testified that what is known as the new pumping plant was in bad condition when defendant took possession of the leased premises, some of them entering into a detailed description of defects in the pump. True, others testified in behalf of the plaintiff that it was in good condition. Its condition, therefore, was sharply controverted, and the disputed fact was very properly submitted to the jury. In such circumstances, the rule is that we will not disturb their verdict. Otero v. Wheeler, ante, p. 50, 185 Pac. 359; McCord v. McCord, 13 Ariz. 377, 114 Pac. 968; Southern Pac. Co. v. Hogan, 13 Ariz. 34, 29 L. R. A. (N. S.) 813, 108 Pac. 240; Cunningham v. Costello, 19 Ariz. 512, 172 Pac. 664; Rouillier v. Schuster, 18 Ariz. 175, 157 Pac. 976; Leadville Min. Co. v. Hemphill, 17 Ariz. 146, 149 Pac. 385.
The same complaint is made of the special verdict to the effect that defendant “kept the new plgnt in [381]*381good condition and complete repair during the time he occupied the premises under lease.” There was substantial evidence to sustain this finding of the jury, and it also must stand as settled.
The finding of the jury that plaintiff breached his promise to put the “old pumping plant” in good working condition is not questioned by plaintiff. Neither is the one that the defendant expended $500 in an attempt to place the pumping plants in condition for use, or the one that it would have cost $2,000 to put the pumping plants in good working condition.
The next error assigned is that the court, in instructing the jury, placed the burden of proof upon plaintiff to show that defendant did not keep the pumping plants in good condition and complete repair ; it being contended that the burden on that issue was upon the defendant. Both the plaintiff and defendant were asking for affirmative relief, each claiming that he had kept and performed all the conditions of his contract, and that the other had breached such contract. The plaintiff, on his part, in three causes of action against defendant had alleged as the gravamen of his complaint that defendant had failed to keep the engine, pumping plants, fixtures and things upon or about said farm in good condition and complete repair. This allegation is repeated by plaintiff in one form or another in each of his three causes of action. Having alleged this breach by defendant as the foundation of his causes of action, he assumed the burden of establishing his allegations. It was up to him to make out his case, and to do so it was incumbent upon him to introduce evidence sufficient to satisfy the triers of the issue that he had not only performed his part of the contract, but that defendant had failed in the performance of his agreement in the particular respects alleged in his complaint as the basis of his causes of action. The general rule [382]*382is that he who asserts an affirmative has the burden of proving it. 10 E. C. L. 898, § 48; 16 Cyc. 926. From his standpoint as a plaintiff, it was incumbent upon him to establish his case as made by his pleadings by a preponderance of the evidence, and, viewing the instruction as applied to plaintiff’s case, it was not only unobjectionable but proper.
The defendant, as to his counterclaim, occupied the position of a plaintiff and was under the same obligation as to the burden of proof as the plaintiff with reference to his contention. The duty of sustaining the material allegations of his counterclaim, including the breach as alleged by a preponderance of the evidence, was upon him. Whether the peculiar circumstances of this case should influence a modification of this rule or not, we will hot undertake to say ^ — believing it not to be before us — for the reason the failure of the court to instruct as to where the burden of proof lay in regard to defendant’s counterclaim was not made a ground for new trial in motion for new trial, and, further, it is not assigned as error in plaintiff’s brief. No request for such an instruction was made, and the omission was not called to the court’s attention in the motion for a new trial.
While our statute makes it the duty of the court to charge the jury, paragraph 514, Civil Code, it also gives to either party the right to present “such instructions as he desires to have given to the jury.” Paragraph 516, Civ. Code. We think a fair construction of these provisions should require a party, where the instructions given by the court fail to cover all issues or phases of the case, to request further instructions on the omitted features before he jcould assign such omission as error. This seems to be the generally, adopted rule by the courts.
“It is a rule of very general application that if instructions given are correct as far as they go, it can[383]*383not be assigned as error that the court omitted to instruct on all points involved in the case if the attention of the court has not been directed thereto by special requests for instructions on those points. As was said in an early decision in which Justice STOBY wrote the opinion, it is sufficient that the court has given no erroneous directions. ‘ If either party deems any point presented by the evidence to be omitted in the charge, such party may require an opinion from the court upon that point; if he do not, it is a waiver of it.’ If the instructions given are not sufficiently full, or not sufficiently specific, it is held to be the duty of the party who considers himself aggrieved thereby to request fuller or more specific instructions from the court. In the absence of such request, there is no basis for an assignment of error to the giving of such instructions.” 38 Cyc. 1693.
The two foregoing assignments are directed to errors which, if well taken, would require a retrial of all the issues whether tendered by plaintiff in his several causes of action or by defendant in his several counterclaims. Their rejection for want of merit, however, disposes of the plaintiff’s complaint and results in an affirmance of the trial court’s judgment, “That the plaintiff have and recover nothing on his second amended complaint.”
It is nest contended by plaintiff that the partial new trial should have been extended to and included the item for refusal to renew lease and issues related thereto, because, as he claims, he cannot be held liable on this count until and unless his liability is established for the item of crop failure for the season 1917, and, since the question of this liability is to be retried, the one for refusal to renew lease should also be ordered retried. He insists that these two items of damages grow out of and depend upon the same issues, and that the order granting a new trial as to one in effect vacated and set aside the findings of fact supporting the other.
[384]*384The gravamen of the charge as to crop failure and consequent damages for the season of 1917 is the neglect of plaintiff to put pumping plants in good working condition. Defendant’s right to a renewal was not dependent upon plaintiff’s performance of this condition of the contract. His right to a renewal depended upon his faithfully keeping and performing his covenants, and the jury’s verdict upon these issues is positively and unequivocally in his favor.
The order granting a new trial of the liability of plaintiff for crop failure' for the season of 1917 did not disturb the verdict or findings any further than to require the defendant, upon a retrial, to • establish his allegation that plaintiff had failed to put pumping plants in good working condition, and the damages, if any, he may have suffered by reason thereof. The trial court, acting under paragraph 597, Civil Code, determined the verdict of the jury on the question of plaintiff’s liability for damages for crop failure “to be wrong,” and that the issues involved therein were separable from the issues going to support the claim for damages for failure to renew lease, and very properly ordered a partial retrial.
The purpose of the statute is to stop litigation in the trial court of all questions that have been regularly settled according to the forms of law, and thereby save parties the burden and expense of retrial if those questions are so disassociated from those infected with error as to permit it. The rule is a wholesome one, and its observance by the trial court, where practicable, is to be commended.
The defendant has a cross-assignment of error in which he complains of the order of the court granting the partial new trial. He asserts in his argument that the reason the court granted such partial retrial was because of the instruction given to the [385]*385jury as to the burden of proof, and, inasmuch as the instruction was correct, he contends that the court erred.
We have no way of knowing what prompted the court to grant a partial retrial. The evidence as to the damages the defendant suffered is not in the record. One of the grounds assigned in the motion for a new trial yms that the damages awarded defendant were excessive and given under influence and prejudice. A new trial may have been granted upon that ground so far as we can tell from the record.
The judgment of the lower court is affirmed and the cause remanded, with directions that further proceedings he had in accordance herewith.
CUNNINGHAM, C. J., and BAKER, J., concur.