City Nat. Bank of Commerce v. Farrington

• Decision Date: 06 May 1922
• Docket Number: (No. 9973.)
• Citation: 243 S.W. 544
• Parties: CITY NAT. BANK OF COMMERCE v. FARRINGTON.
• Court: Texas Court of Appeals

243 S.W. 544

CITY NAT. BANK OF COMMERCE v. FARRINGTON.

(No. 9973.)

Court of Civil Appeals of Texas. Fort Worth.

May 6, 1922.

Appeal from Wichita County Court; Guy Rogers, Judge.

Action by Lillie Farrington against the City National Bank of Commerce. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bullington, Boone, Humphrey & Hoffman, of Wichita Falls, for appellant.

Hunt & Scott and W. O. Scott, all of Wichita Falls, for appellee.

CONNER, C. J.

The appellee instituted this suit against the appellant, City National Bank of Commerce, alleging, in substance, that between December 23, 1919, and February 18, 1920, she made deposits with the defendant bank totaling $6,182, and that between said December 23, 1919, and March 26, 1920, she drew out and received from said bank on various checks sums aggregating $5,682, leaving a balance due her thereon of $500, for which she sought recovery. An itemized statement of the several deposits and withdrawals alleged by her was attached as an exhibit to her petition and duly verified.

The defendant answered by a general demurrer, a general denial, and admitted the several deposits and withdrawals as alleged by the plaintiff, but further pleaded specially:

"That on January 30, 1920, the plaintiff drew her check on said bank in the sum of $500 payable to L. E. Smith, and the same was presented in due course by the said L. E. Smith after being indorsed by him on the back thereof, and at the special instance and request by the authority and upon the identification of the said L. E. Smith by the plaintiff herein said check for $500 was paid, which exhausted plaintiff's account, and the defendant does not now have any funds of plaintiff in its hands, but insists that her entire deposit has been exhausted by checks duly presented by her and with her authority, and defendant now owes her nothing; that the said item of $500 sued for by the plaintiff is unjust, and not due."

To this special plea plaintiff filed no reply.

The case was submitted to a jury upon the following issues:

(1) "Find whether or not the $500 check in evidence bears the genuine signature of Mrs. Lillie Farrington?"

(2) "Find whether at the time said check was cashed the said Mrs. Lillie Farrington was present and identified the payee in said check?"

In this connection the court charged the jury that:

"The burden of proof is upon the defendant to establish affirmatively the above and foregoing special issues and unless it has done so you will answer in favor of the plaintiff."

The jury answered both issues in the negative, and thereupon the court entered judgment in the plaintiff's favor in the sum of $500, together with 6 per cent. interest from the 30th day of January, 1920. From this judgment the defendant has duly appealed.

But two material questions are presented. The first is: Did the court properly place upon the defendant the burden of proving the defensive matter set up in his special plea that we have quoted? and, second, whether the evidence, in behalf of plaintiff to the effect that she did not sign the check to L. E. Smith described in the answer and that she did not identify Smith at the time of the payment of the check as alleged by the defendant was admissible in the absence of a plea on her part in reply to the special answer of the defendant.

The rule that the burden of proof is generally upon the plaintiff to establish every material fact alleged by him and that such burden never shifts is too well established to require the citation of authorities. In this case among the allegations necessary for proof on the part of the plaintiff was the allegation that the balance of $500 for which she sought recovery had never been paid, and the court's charge placing the burden upon the defendant to prove this fact is in apparent opposition to the general rule stated. But on this subject it is stated by the author of the Blue Book on Evidence, vol. 2, § 180, p. 22, that:

"It is reasonable that the one who asserts a fact necessary to the claim or defense should prove such fact; and in the great majority of cases it will be found that the fact to be proved is a proposition affirmative in form. But it is well settled that whoever asserts a claim or a defense which depends upon a negative must, as in other cases, establish the truth of the allegation by a preponderance of evidence."

The author then gives numerous examples in illustration of the rule as stated, among which is one relating to actions of debt. As to this he says:

"In actions of debt, if the plaintiff proves the existence of the debt sued upon, the burden of establishing its payment is on the defendant, although in his complaint it was necessary for the plaintiff to allege nonpayment."

See Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 Am. St. Rep. 127.

In the case of Cherry v. Butler (Tex. Sup.) 17 S. W. 1090, it is held:

"Where defendant admits that a debt" upon which a suit is brought "is correct, but claims that it has been paid by him, the burden of proof is upon him to establish these facts."

The case of Banister v. Wallace, 14 Tex. Civ. App. 452, 37 S. W. 250, holds as follows:

"In an action of debt on an obligation to pay a given sum of money at a specified time, the burden is on the defendant to prove payment."

The following is held in the case of Tinsley v. McIlhenny, 30 Tex. Civ. App. 352, 70 S. W. 793.

"Defendants, contracting to pay a note of plaintiffs, when sued for their failure to pay, held to have the burden of proving the credits to which the note was entitled."

In the case of Eastham v. Patty & Brockinton, 37 Tex. Civ. App. 336, 83 S. W. 885, it was held:

"Defendants having pleaded payment, the burden is on them to show that a particular payment should have been applied to the note sued on."

The case of Hutton v. Pederson (Tex. Civ. App.) 153 S. W. 176, holds as follows:

"The maker of a note secured by a deed of trust on real estate suing to enjoin a sale under the deed of trust had the burden of showing payment either by direct or circumstantial evidence."

The following is held in the case of Brunson v. Dawson (Tex. Civ. App.) 175 S. W. 438:

"Burden of proving payment of note sued on held on defendant."

We are of opinion, therefore, that the court properly placed the burden of proof upon the defendant. This is particularly true in view of the affirmative character of its...