Walston v. Davis , 146 Ala. 510 ( 1906 )

WEAKLEY, C. J.

The controverted question upon the trial aróse upon the plea of payment. The bill of exceptions recites that the plaintiff’s evidence tended to show the note had not been paid, while the defendant’s evidence tended to support the plea. The burden of proof rested upon the defendant to reasonably satisfy the jury that the note had been paid; but he was not required to establish the defense beyond doubt nor even beyond a reasonable doubt.

No exception appears to have been reserved to that portion of the oral charge which forms the predicate for the first assignmnet of error.

Charges 1, 2, and 3, given for the plaintiff, were; each erroneous in requiring a verdict for the plaintiff- if the jury were in doubt whether the note had been paid. The charges exacted too high a measure of proof. — A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65; Torrey v. Burney, 113 Ala. 496, 21 South. 348; L. & N. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 27 South. 760.

The court properly refused charge 1, requested by defendant. It omitted to use the word “reasonably” as qualifying “satisfied,” and misplaced the burden of proof. The fact that the note was lost after suit did not alter the familiar rule that upon a plea of payment the burden of proof is upon the defendant. The plaintiff was not required to prove the lost paper had not reached the hands of an innocent purchaser. Moreover, the note was not governed by the commercial law, as it was not payable at any bank or private banking house or any certain place of payment. — Code 1896, § 869. This disposes of all the assignments of error.

For the errors pointed out, the judgment must be reversed, and the cause remanded.

Haralson, Dowdell, and Denson, JJ., conchr.