122 Cal. 440 | Cal. | 1893
Action on a promissory note alleged to have been made by Thomas Brennan, deceased, to the plaintiff.
At the trial plaintiffs attorney introduced the note sued on in evidence, which had no indorsement whatever of payment, and introduced a witness, William Byan, who testified that the note was in the handwriting of the deceased. This evidence was introduced without objection- Plaintiff then rested; whereupon defendant moved for a nonsuit upon the ground that the evidence on the part of the plaintiff was not sufficient to show that the note had not been paid. The motion was denied; and, defendant declining to offer any evidence, judgment was rendered for plaintiff as prayed for in the complaint. Defendant appeals from the judgment.
The only point insisted upon by appellant here is, that there was not sufficient proof of nonpayment of the note. At comr mon law, and in many of the American states, payment is an affirmative plea on the part of the defendant, and the burden of proving it rests upon him. (2 Greenleaf on Evidence, sec. 516.) if a different rule prevails in California, still it is the law here that the production of the note by plaintiff in such an action, with no indorsement of the payment on it, is sufficient prima facie proof of nonpayment. (Frisch v. Caler, 21 Cal. 71, and Farmers etc. Bank. v. Christensen, 51 Cal. 571.) The possession of the attorney for plaintiff was the possession of plaintiff.
The judgment is affirmed.
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied.