97 Ala. 459 | Ala. | 1892
— The only question in this case is one of fact, namely, whether complainant received the check of respondent for $2,000, on Moses Bros, in payment pro tanto of the purchase money for the house and íot described in the bill, or merely as a means of payment through its presentation to said Moses Bros, for that purpose. It is conceded that the sale was a cash transaction. It is not controverted that the vendor has never received in cash $2,000 of the price agreed to be paid. Dr. Bibb, the husband of the respondent and who, as her agent, made the purchase, testifies that this check was to be received in absolute payment of the sum evidenced by it. The complainant on the other hand, with equal emphasis, testifies that the check itself was not to be and was not in fact received as payment but only as a means of getting the money, which alone was to constitute payment, out of the bank where it was deposited. There is nothing in the record to impugn the credibility of either witness. On the main issue therefore the case stands in equipoise. The prima faeie presumption of law is that the check was not taken in payment. — McWilliams v. Phillips, 71
We do not think there is any thing in the circumstances of the case therefore which even tends to rebut the presumption that this check was not taken in payment and satisfac • tion of the. $2,000 now sought to be collected by a sale of the property, and the decree to the end must be affirmed.
Affirmed.