Somervail v. Gillies, 31 Wis. 152

Somervail v. Gillies

31 Wis. 152 | Wis. | 1872

Dixosr, O. J.

This case, so far as the decision depends upon presumptions arising from the facts proved, is one where the presumptions conflict and run directly counter to each other. The presumption of payment, arising from the maker’s having paid or delivered money to the payee of the noté, is encorm-tered by the opposite presumption, arising from the note remaining in the hands of the payee or his legal representative, uncancelled and with no receipts of the alleged payments endorsed. The mere fact of the payment by one person to another is presumptive evidence of the payment of an antecedent debt, and not of a loan. In the present case, had it been shown that there were no other dealings between the parties, and that no other indebtedness existed than upon the note in suit, the proof of payment of money by the maker to the payee of the note would have created a very strong and almost conclusive presumption of payment upon the note. But no such facts were shown, and herein the weakness of the defense and imperfect and unreliable nature of the presumption are disclosed. Conceding both sums of money represented by the checks to have been paid by the maker to the payee, of which the check for one sum,, payable to bearer and without the payee’s receipt for the money endorsed thereon, was no evidence, still they may have been payments upon other debts due from the maker to the payee, instead of upon the debt due upon the note; or they may have been payments made in the course of other dealings or business transactions between the parties. Under such circumstances, to give the maker of the note the benefit of the presumption claimed for him, requires at the same time the aid of another presumption, which cannot be indulged, namely, that there were no other debts or. dealings to which the payments could have been applied. The presumption of payment of the note, therefore, arising from the mere fact of payments of money being shown to have been made by the maker to the payee, is not only met, but in fact overcome, by the presumption arising from the possession of the note by the payee still uncancelled *156and unextinguished by indorsements of payments upon it. The presumption, when a note has been paid, is, that it has been taken up by the maker, or otherwise cancelled so as to show that the debt is extinguished. When paid, the maker is entitled to delivery of it, and such is the usage of merchants and all persons giving and receiving such paper. If but a partial payment is made, the custom is for the maker, at the time of paying, to see that it is endorsed. From these well known usages arises the presumption, which, until rebutted, is decisive, that an outstanding note is still unpaid. This presumption the evidence in this case failed entirely to rebut, and the court was correct in the special instruction given, that the burthen was upon the maker to show that the checks in question were given and received as payments on the note, and that no presumption could be made from such mere payments against the note in the hands of the holder.

To the general charge there was but a single exception, which was to the whole of it, and which of course is insufficient. But, if it had been otherwise, the charge was unexceptionable so far as the defendant was concerned.

Besides the presumptions which the facts of the case gave rise to, there was some evidence tending directly to show that the sums of money represented by the checks were not given and received as payments on the note. We refer to the testimony of the plantiff as to the admission made to her by the defendant when she presented the note to him for payment. It is true that the defendant contradicted her, and introduced some testimony of a corroborating tendency by another witness ; but it was for the jury to consider and determine the weight and credibility of such testimony.

The point that the answer sets up a counterclaim, and should have been replied to, seems to be abandoned, as well it might be. The answer avers payment as a defense, and contains nothing in the nature- of a counterclaim so far as we can discover.

By the Court. — Judgment affirmed.