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statutory provision that where a suit is brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party to the record, a plea of payment in such a case which does not allege a payment to the beneficial plaintiff or a payment to the person holding the legal title, before the person holding the beneficial interest acquired his right, is clearly bad.

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130. Pleading Presumption of Payment.-To avoid objection by demurrer, the plaintiff must allege in his complaint the facts and circumstances on which he relies to rebut the presumption of payment arising from the lapse of time. If a defendant intends to rely on the lapse of time to defeat an action it is essential that he plead it, unless the facts appear on the face of the complaint without an allegation of rebutting circumstances, when advantage of the presumption may be secured by demurrer. It has been held that the fact which the lapse of time conduces to prove must be pleaded, and not the mere lapse itself, on the ground that the lapse of time is not in itself the bar, and cannot be pleaded as such, but the matter which is presumed from, or, in other words, proved by, the lapse of time, and which matter is the bar, must be set up by the plea." But as according to the view of some authorities a plea of payment rebuts the presumption, it would seem necessary to plead not only payment but also sufficient facts to indicate clearly the basis of the plea. But notwithstanding the view just expressed it is questionablé whether it is essential that the defendant plead the presumption in order to receive the benefit of it. This is on the ground that the presumption of payment arising from the lapse of time is usually drawn from the plaintiff's own case, and when so drawn it can hardly be regarded as a matter of affirmative defense. If the plaintiff cannot make out a prima facie case without showing also the fact of nonpayment for more than twenty years, the presumption of payment immediately arises, attaches at once to his evidence, and weakens it to such an extent that he cannot recover unless he goes further and undertakes to prove facts tending to repel the presumption. The defendant is not required to repeat the proof that twenty years have elapsed without payment, for that has already appeared; he need only

Co., 87 Kan. 65, 123 Pac. 863, Ann.
Cas. 1913D 813.

3. Mobile, etc., R. Co. v. Jurey, 111 U. S. 584, 4 S. Ct. 566, 28 U. S. (L. ed.) 527.

4. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454. As to the presumption of payment arising from lapse of time, see infra, par. 141 et seq.

5. Livingston v. Livingston, 4 Johns. Ch. (N. Y.) 8 Am. Dec. 562.

6. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A.

454.

7. Gulick v. Loder, 13 N. J. L. 68, 23 Am. Dec. 711.

8. See infra, par. 164.

call the court's attention thereto, and may then rest upon the presumption or inference of fact arising therefrom until the plaintiff has strengthened the weak point in his own attack. If, however, the plaintiff makes no effort so to do, he fails altogether; but he fails solely for the reason that he has not made out his case in other words, because his evidence lacks persuasive power."

Proof

131. Burden of Proof. Of course in a complaint on a promissory note, or other obligation to pay money, there must be an averment that the money has not been paid. This is necessary to make the complaint perfect on its face. But it is a non sequitur to say that because such negative averment is necessary in the complaint therefore it is necessary for the plaintiff to prove it. The general rule is that a party is not called upon to prove his negative averments, although they may be necessary to his pleading.10 The plea of payment tenders an affirmative issue, and the burden of proof must be assumed by the party interposing the plea.11 Where, under the terms of a written obligation, a specific sum of money becomes due and payable at a certain time, the production of such obligation establishes prima facie that the amount therein stipulated to be paid is due, and it is not incumbent on the person holding such obligation in the first instance to show either that demand has been made, or that there has been a failure to comply therewith. Accordingly the proof of a lease establishes prima facie a liability for the full amount and the defendant must establish payment if he is to receive the benefit of it; the plaintiff is not obliged to prove either demand or nonpayment.12 In an action on a promissory note the plaintiff establishes a prima facie case by proving the note, and it is necessary, therefore, to justify a verdict in favor of the defendant upon the plea of payment, that he produce evidence sufficient to overcome the prima facie evidence in favor of the plaintiff arising from the note's being in his possession, and also to outweigh any other evidence in the case tending to show that the note was unpaid.18 In a given

9. Chesapeake, etc., Canal Co. v. United States, 223 Fed. 926, 139 C. C. A. 406, L.R.A.1916B 734.

10. Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 A. S. R. 127.

11. Simonton v. Winter, 5 Pet. 141, 8 U. S. (L. ed.) 75; Sampson v. Fox, 109 Ala. 662, 19 So. 826, 55 A. S. R. 950 and note; Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 A. S. R. 127; Indianapolis St. R. Co. v. Haverstick, 35 Ind. App. 281, 74 N. E. 34, 111 A. S. R. 163; Cobleskill First Nat. Bank

v. Hellyer, 53 Kan. 695, 37 Pac. 130, 42 A. S. R. 316; Montgomery v. Leuwer, 94 Minn. 133, 102 N. W. 367, 110 A. S. R. 349: Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410; North Pennsylvania R. Co. v. Adams, 54 Pa. St. 94, 93 Am. Dec. 677.

Note: 110 A. S. R. 351.

12. Montgomery v. Leuwer, 94 Minn. 133, 102 N. W. 367, 110 A. S. R. 349.

13. Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 A. S. R. 258.

case the burden of proof or at least the burden of introducing evidence of nonpayment may be cast upon the plaintiff. Thus if the plaintiff voluntarily offers proof of nonpayment he must introduce sufficient proof to establish a prima facie case of nonpayment.14

132. Degree of Proof. The general rule is that a plea of payment, being an affirmative defense, must be supported by a preponderance of the evidence, in order to be effective in favor of the party pleading it.15 As the burden of proof of payment is satisfied by a fair preponderance of the evidence, an instruction that it is incumbent on the defendant to establish the fact of payment "by clear and satisfactory evidence" is clearly erroneous, as it negatives the idea that a mere preponderance of evidence is sufficient to warrant the jury in finding that payment was made as claimed, and informs the jury that the fact of payment must be shown by evidence establishing it to a higher degree of certainty than its mere preponderance.16 The fact that the court also instructed the jury correctly without calling their attention to and correcting the erroneous instruction will not cure the error, as it would be impossible to say which instruction the jury followed.17

133. Evidence Admissible under Plea of Payment.-Any entry or transaction between the parties concerning a payment pertaining to the res gestae may properly be proved by either party, but it is not proper under this rule for a bank to prove entries made in its books in the absence of the other party several hours after a transaction in dispute for the purpose of showing a payment made.18 The rule that foreign laws must be pleaded and proved like other facts is not applicable when they consist of mere matters of evidence. Hence, under a general plea of payment, it is competent for the debtor to prove that, according to the laws of another state on which the nature of his obligation depends, a creditor's acceptance of his debtor's promissory note for a pre-existing debt operates as an extinguishment thereof.19 In an action on an original debt, in payment. of which a check has been given, the failure of the plaintiff to present such check for payment within a reasonable time, resulting in loss to the drawer, is available as a defense under the plea of

14. Goff v. Stoughton State Bank, 78 Wis. 106, 47 N. W. 190, 9 L.R.A. 859.

15. Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 A. S. R. 258; Demeules v. Jewell Tea Co., 103 Minn. 150, 114 N. W. 733, 123 A. S. R. 315, 14 L.R.A. (N.S.) 954; Meyer v. Hafemeister, 119 Wis. 539, 97 N. W. 165, 100 A. S. R. 900.

Notes: 42 A. S. R. 317; 55 A, S. R. 960.

16. Meyer v. Hafemeister, 119 Wis. 539, 97 N. W. 165, 100 A. S. R. 900. 17. See INSTRUCTIONS, vol. 14, p. 813.

18. Goff v. Stoughton State Bank, 78 Wis. 106, 47 N. W. 190, 9 L.R.A. 859.

19. Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 58 A. S. R. 536.

payment. In some jurisdictions evidence of want of consideration may be given under a plea of payment. A judgment of garnishment against the defendant cannot be given in evidence under a plea of payment. Such matter is special matter in avoidance, and not negativing the original indebtedness, and must therefore be specially pleaded. A check drawn to another's order, indorsed by him and paid, is presumptive evidence that its amount was paid to the payee on account of a debt shown to have existed at that time, and the check cannot be excluded on the ground that it belongs to a different transaction, until the presumption is overcome by proof. This is on the ground that the law presumes that money given to another to whom a debt is owing is given in payment of the debt rather than for some other purpose.3

XI. EVIDENCE

134. Financial Ability.-Evidence of the financial condition of either the debtor or the creditor may, by reason of the circumstances, have some probative force on the question of the payment of an indebtedness, or it may be so remotely connected with that question as to be almost or entirely devoid of probative value. In the former instance the evidence would be admitted, in the latter rejected. The admissibility of the evidence is therefore to be determined in view of its bearing on the question under investigation, considering the circumstances surrounding the transaction and the relation of the parties, and not by any fixed rule. Experience is not sufficiently uniform to raise a presumption that one who has the means of paying a debt will actually pay it. Accordingly, it is held that the fact that a debtor has had such means is not admissible in the first instance as tending to show that the debt has been paid. Indeed the effect of the reputed wealth of a debtor and his supposed ability to pay whenever called on might have furnished the very reasons bearing on the creditor's mind to allow the obligation to remain uncollected. But if it is shown that the creditor was in pressing need of money, proof that at the time the debtor was in funds, to the knowledge of the creditor,

20. Watt v. Gans, 114 Ala. 264, 21 So. 1011, 62 A. S. R. 99.

1. Swift v. Hawkins, 1 Dall. (Pa.) 17, 1 U. S. (L. ed.), 18.

2. Walters v. Washington Ins. Co., 1 Ia. 404, 63 Am. Dec. 451.

3. Masser v. Bowen, 29 Pa. St. 128, 72 Am. Dec. 619.

4. Supreme Tribe, etc. v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 A. S.

R. 262.

Note: 8 Ann. Cas. 780.

5. Xenia First Nat. Bank v. Stewart, 114 U. S. 224, 5 S. Ct. 845, 29 U. S. (L. ed.) 101; Atwood v. Scott, 99 Mass. 177, 96 Am. Dec. 728; Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109; McDowell v. MeDowell, 75 Vt. 401, 56 Atl. 98, 98 A. S. R. 831.

Note: 8 Ann. Cas. 780.

6. Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109.

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is admissible on the question of payment. And where evidence that the debtor did not have the means to pay has been given by the party controverting the plea of payment or where by crossexamination he has sought to establish the inability of the adverse party to pay, it then becomes permissible for the party who has set up the payment to sustain that defense by direct proof to the effect that he possessed the requisite means. The admissibility of such testimony where a question has been raised as to the pecuniary ability of the party pleading payment is clearly supported by every consideration of fairness and justice and appears to have the sanction of judicial authority wherever the question has been raised.8 Many authorities sustain the view that evidence of the ability of the debtor to have paid a debt sought to be collected is admissible, especially where the payment is claimed to have been made at a remote time and circum-tantial evidence of that fact has to be relied on mainly. According to one view it is within the reasonable discretion of the trial court to admit evidence as to the financial standing and business habits of the debtor, as it has a bearing on the credibility of the creditor's testimony that he has not been paid; but the action of the trial court in excluding such evidence as being too remote will not be disturbed on appeal, in the absence of a showing of abuse of discretion.10

135. Financial Inability. The fact that one has not had the means to make certain payments is evidence tending to show that he has not made them, and such evidence is held to be admissible.11 There is good authority supporting the rule that insolvency is no evidence of nonpayment, as it is common for both solvent and insolvent men to pay some of their debts and to leave some unpaid.12 Evidence that for a considerable period of time after the maturity of a debt the creditor was in financial difficulties which made the collection of the debt very desirable and necessary has been held competent as tending to show payment.18

136. Receipt.-A receipt in full of all demands is prima facie proof of a settlement between the parties, and of the payment of the balance; and it is not merely evidence of the sum specified in it.14

7. Coulter v. Goulding, 98 Minn. 68, 107 N. W, 823, 8 Ann. Cas. 778; MeDowell v. McDowell, 75 Vt. 401, 56 Atl. 98, 98 A. S. R. 831.

8. Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109 and note.

Note: 8 Ann. Cas. 780.

9. Note: 8 Ann. Cas. 780. 10. Coulter v. Goulding, 98 Minn. 68, 107 N. W. 823, 8 Ann. Cas. 778. 11. Atwood v. Scott, 99 Mass. 177,

96 Am. Dec. 728; Dick v. Marvin, 188 N. Y. 426, 81 N. E. 162, 11 Ann. Cas. 109.

Note: 8 Ann. Cas. 780.

12. Xenia First Nat. Bank v. Stewart, 114 U. S. 224, 5 S. Ct. 845, 29 U. S. (L. ed.) 101.

Note: 8 Ann. Cas. 780.

13. Note: 8 Ann. Cas. 780.

14. Reid v. Reid, 13 N. C. 247, 18 Am. Dec. 570.

Note: 72 A. S. R. 590..

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