Cherry v. Butler

• Decision Date: 12 December 1891
• Citation: 17 S.W. 1090
• Parties: CHERRY <I>et al.</I> v. BUTLER.
• Court: Texas Court of Appeals

17 S.W. 1090

CHERRY et al. v. BUTLER.

Court of Appeals of Texas.

December 12, 1891.

Appeal from Navarro county court; JOHN H. RICE, Judge.

Action by Cherry, Morrow & Co. against N. H. Butler on a lost acceptance. Plaintiffs appeal from a judgment entered upon a verdict for defendant. Reversed.

Frost & Ethridge, for appellants.

WHITE, P. J.

Cherry, Morrow & Co. brought this suit in the county court of Navarro county to recover upon a lost acceptance or a draft, No. 2,519, drawn by them upon N. H. Butler, for the sum of $404, dated November 9, 1885, together with interest and costs of collection. Butler pleaded that he had paid said acceptance, and upon the trial there was a verdict and judgment rendered in favor of Butler, from which judgment this appeal is taken by appellants. The evidence discloses that Butler had been in the habit of buying wagons by the car-load from appellants, and that on September 7, 1885, plaintiffs sold defendant a car-load of wagons, for which he made three acceptances, among which was one for $404, due November 1, 1886. That by a mistake this acceptance was sent to the bank at Corsicana for collection on November 1, 1885, — a year before it was due, — and defendant paid it. Having discovered his mistake in paying it a year before it was due, he drew on appellants for $404, and the appellants repaid him that sum, and sent him another acceptance, which was executed by Butler, for $404, which was to be due and payable on the 1st of November, 1886, and this acceptance is the one herein sued on. They allege in their petition that the acceptance had been lost by them, but that it was due and unpaid. As heretofore stated, defendant claimed that he had paid it. Defendant admitted the facts with regard to the two acceptances to be true, and pleaded in defense that he had paid both. Where defendant admits that a debt is correct, but claims that it has been paid by him, the burden of proof is upon him to establish these facts. 2 Greenl. Ev. 516. Defendant testified in his own behalf on the trial of the case, and his evidence is too uncertain and unsatisfactory in regard to the payment to warrant us in holding that he has proven the same. He states that his recollection is that he paid it to Jester, a banker; but he is not certain, but knows that he paid it to somebody representing plaintiffs. He admitted that he stated to Ethridge, appellants' attorney, that he had paid the acceptance before it was due, and he admitted that the duplicate acceptance of the original had been presented to him for payment in 1889 by Mr. Church, cashier of the First National Bank of Corsicana, but he claimed that in all his conversations with regard to the matter he stated and insisted the acceptance had been paid. He testified that he did not have the acceptance; that he was not very strict in book-keeping; and that he would tear up notes as soon as he had paid them. It was shown by the evidence for the plaintiffs that Cherry, Morrow & Co. had never been paid said acceptance, and that the defendant wrote to them that he had paid the acceptance, and had it in possession; that it was collected by the First National Bank of Corsicana. It was proven by the officers of the First National Bank of Corsicana that the acceptance had never been paid to them, and that they had never collected the same. It was proven by L. L. Jester, to whom defendant said he had paid the note, that it had never been paid to him. Mr. Ethridge stated that he asked him how and to whom he had paid it, and he stated to him (Ethridge) that he had paid it a year before it was due; but Mr. Ethridge says he did not...