AUTO FINANCE COMPANY OF NC v. McDonald

105 S.E.2d 193 (1958)

249 N.C. 72

AUTO FINANCE COMPANY OF N. C., Inc. v. Paul J. McDONALD.

No. 250.

Supreme Court of North Carolina.

October 15, 1958.

James B. Ledford, L. Glen Ledford, Charlotte, for defendant-appellant.

B. Irvin Boyle, J. J. Wade, Jr., Charlotte, for plaintiff-appellee.

*194 HIGGINS, Justice.

One question only was in dispute in the court below: Was the debt paid? The defendant admitted the execution and delivery of the note and contract. The plaintiff had possession and introduced both in evidence. Defendant relied on the defense of payment.

The court charged the jury that the burden of showing payment was on the defendant. This the defendant challenges upon the ground that the receipt from the plaintiff of the title (not the note and contract) marked paid, together with the accompanying letter, placed upon the plaintiff the burden "of going forward with the evidence" and impeaching the receipt.

This action was brought on the note and contract, and not on the title. The defendant's contention would have more weight if he had the obligation itself in his possession, marked paid. But the obligation upon which suit is brought was in the hands of the plaintiff and introduced in evidence. The burden of showing payment, therefore, was upon the defendant. "It is well settled that the plea of payment is an affirmative one, and the general rule is that the burden of showing payment must be assumed by the party interposing it." White v. Logan, 240 N.C. 791, 83 S.E.2d 892, 1093; Smith Builders Supply Co., Inc., v. Dixon, 246 N.C. 136, 97 S.E.2d 767; Davis v. Dockery, 209 N.C. 272, 183 S.E. 396; Collins v. Vandiford, 196 N.C. 237, 145 S.E. 235; Swan v. Carawan, 168 N.C. 472, 84 S.E. 699

The court's charge properly placed upon the defendant the burden of showing payment.

No error.

JOHNSON and PARKER, JJ., not sitting.