Cook & Co. v. Malone & Sons
128 Ala. 662
Ala.
1900
Check Treatment
SHARPE, J.

To establish their pleas of set-off the defendants introduced evidence tending to prove that the plaintiffs owed them the purchase price of cotton sold by them to the plaintiffs. Plaintiffs resisted that claim by' evidence tending to show they bought the *665cotton for cash then presently paid to defendants. The court gave the following among other instructions to the jury: “The burden of proof is on the defendants to establish the fact that Malone and Sons bought the six bales of cotton, and that they had noit paid the defendants for said cotton.”- It is here insisted for defendants that the charge violated the rule stated generally in 3 Brick. Dig. 698, sections 1 and 2, and applied to a cross action of set-off in Snodgrass v. Caldwell, 90 Ala. 318, which subjects the party relying on the defense of payment to the burden of proof. That mile is applicable only where the issue is whether an indebtedness assumed to have been in existence has been discharged by payment. In this case the payment the plaintiff sought to prove was not of a debt, but ivas one occurring in the consummation of a cash purchase. A sale wherein no credit is either expressly or impliedly given but which is strictly for cash is not consummated until the consideration is paid. — 1 Benj. on Sales, §§ 335 et seq.; Shines v. Steiner, 76 Ala. 458; Blackshear v. Burke, 74 Ala. 239. In such a sale payment concurs with the passing of ownership in the property so that no indebtedness for the price can intervene.

On the trial the controversy and conflict in evidence was as to the character of the sale of cotton; whether it was such as gave rise to an indebtedness rather than as to whether an indebtedness had been. paid. -As applied to that issue, the court’s charge was correct. The burden of proving a prima facie case for allowance of the set-o If was certainly on the defendants. — Brigham v. Carlisle, 78 Ala. 243. To make such a case it was incumbent on them-at least to show, not merely a sale of the cotton claimed, but such a sale as brought the plaintiffs in debt to them, and this called for proof that cash payment was not made.

For the same reasons the charge requested by the .defendant was properly refused.

Dawsey’s statement in evidence, was admissible, be-, ing corroborative of other testimony upon a. material and disputed point.

The judgment will be affirmed.