JIM WHITE v. H. A. LOGAN, JR.
(Filed 20 October, 1954.)
1. Payment § 9—
Tbe plea of payment is an affirmative defense and tbe general rule is that tbe burden of showing payment must be assumed by tbe party interposing it.
3. Evidence § 7a—
The burden of proof is a substantial right.
3. Bills and Notes § 35—
Where, in an action on a note, defendant admits tbe execution of tbe note and pleads payment in full, tbe burden is upon him to prove tbis defense, and an instruction that tbe plaintiff had tbe burden of establishing by tbe greater weight of tbe evidence that defendant was indebted to him in some amount, and tbe amount of the indebtedness, must be held prejudicial error.
Appeal by plaintiff from Pless, J., and a jury, at March-April Term, 1954, of CLEVELAND.
Civil action on promissory note. Tbe plaintiff alleges a balance due of $1,089.20. Tbe defendant in bis further defense admits tbe execution of tbe note and pleads payment in full. On tbe issue of payment thus raised tbe trial court charged tbe jury, among other things, that “tbe plaintiff, Mr. "White, has tbe burden of establishing by tbe greater weight of tbe evidence that tbe defendant, Mr. Logan, is indebted to him in some amount, and tbe amount of it.” Exception by plaintiff.
Tbe jury found for their verdict that tbe defendant owes a balance of $200. From judgment on tbe verdict, the plaintiff appeals.
Horace Kennedy for plaintiff, appellant.
No counsel contra.
Johnson, J.
It is well settled that tbe plea of payment is an affirmative one, and tbe general rule is that tbe burden of showing payment must be assumed by tbe party interposing it. Davis v. Dockery, 209 N.C. 272, 183 S.E. 396; Furst v. Taylor, 204 N.C. 603, 169 S.E. 185; Collins v.
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Vandiford, 196 N.C. 237, 145 S.E. 235; Swan v. Carawan, 168 N.C. 472, 84 S.E. 699. See also Joyce v. Sell, 233 N.C. 585, 64 S.E. 2d 837; 8 Am. Jur., Bills and Notes, Sec. 1035; 40 Am. Jur., Payment, Sec. 278. The burden of proof is a substantial right. Davis v. Dockery, supra; Collins v. Vandiford, supra.
Here tbe defendant’s plea of payment cast on him tbe burden of proving tbe affirmative of tbe issue thus raised. However, tbe trial court inadvertently placed tbe burden of proof on tbe plaintiff. This entitles tbe plaintiff to a
New trial.