125 Cal. 618 | Cal. | 1899
Action to recover on a promissory note. Judgment for defendant. Plaintiff appeals from the judgment and from an order denying his motion for a new trial. The case is here on the judgment-roll and a hill of exceptions. The court below found that the note had been fully paid, and the plaintiff contends that this finding is not supported by the evidence and we think the contention will have to he sustained.
On Hay 22, 1893, John H. Hughes, now deceased, made his
The complaint contains a copy of the said note, alleges the due presentation of the claim and its rejection by defendant, and is verified. The answer, which is also verified, alleges that defendant has no information or belief as to the making and delivering of the note, and upon that ground denies that it was made and delivered as set forth in the complaint.
The answer also denies that the note has not been paid, and denies the presentation of the claim to the defendant. Plaintiff introduced in evidence the promissory note with the indorsements thereon, proved the signature of deceased thereto, and the due presentation of the claim and its rejection, and rested. This made out a prima facie case of nonpayment. (Farmers’ etc. Bank v. Christensen, 51 Cal. 572; Turner v. Turner, 79 Cal. 566; Ritter v. Schenk, 101 Ill. 389.)
It being thus shown that the note was not paid, the burden was cast upon defendant to prove by competent evidence that it had been paid. The evidence on the part of the plaintiff raised a presumption of nonpayment, which in law entitled him to recover. The evidence on the part of the defendant must have been such, whether direct or by raising legal presumptions, as to rebut the prima facie case made by plaintiff. The only evidence offered by defendant is to the effect that on October 5, 1894, the deceased executed and delivered to plaintiff his promissory note secured by mortgage for $4,543.32. That on said last-named date there was due upon an old note and mortgage, executed by deceased to this plaintiff in 1891, the sum of about $3,200 or $3,300. There was no proof that the note and mortgage of October 5, 1894, was in payment of the old note and mortgage of 1891, and no evidence as to the consideration for the same, and it was not shown that either of the mortgages had any connection in any way with the note in controversy here.
The receipts offered in evidence by defendant are not described in such manner in the bill of exceptions as to enable us to even guess at what they were for. The date is not given nor
Even if the amount was for money actually paid by deceased to be credited on the note, it would not change the result here because the amount is not sufficient to show that the note has been fully paid.
We advise that the judgment and order be reversed.
Haynes, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed.
Van Dyke, J., Garoutte, J., Harrison, J.