Dorroh v. Wall
| Decision Date | 13 August 1927 |
| Docket Number | No. 4146.,4146. |
| Citation | 297 S.W. 705 |
| Parties | DORROH v. WALL |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.
Action by Charles Dorroh against Bob Wall. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Ward & Reeves, of Caruthersville, for appellant.
Von Mayes and McKay & Peal, all of Caruthersville, for respondent.
This is an action on an account for $115.59. Defendant pleaded payment. Upon a trial of that issue to a jury the verdict and judgment were for defendant, and plaintiff has appealed.
From the evidence it appears that plaintiff was a hardware merchant, doing business under the name of the "Caruthersville Hardware Company." Defendant was a farmer. From the 30th day of June, 1920, to May 13, 1921, defendant purchased certain articles of merchandise from plaintiff at his store. It is admitted the articles were purchased, and the only defense submitted to the jury was on the pled of payment. In support of this defense defendant offered in evidence three bills, which, collectively, constituted all the items included in the account sued on. These three bills were marked, respectively, as defendant's Exhibits A, B and C. Upon each of these bills were marked the letters, "Pd." Objection was made to the introduction of these bills for the stated reason that the bills had not been identified so as to show how "the word `Pd.' got on there." The objection was overruled. The introduction of these bills in evidence over plaintiff's objection is the principal error assigned. Defendant testified as to Exhibit A, which item amounted to $62.50, that at the time it was charged to him he was farming the land of one B. P. McIntyre, since deceased; that he had a settlement with McIntyre's widow and obtained the Exhibit A from Mrs. McIntyre; that he paid her for it; he also testified he obtained Exhibit C from her, and that he himself paid the items shown on Exhibit B, amounting to $11.90: He further testified that he "presumed" McIntyre paid the bills he obtained from Mrs. McIntyre. On cross-examination, defendant stated he "didn't know it was paid or not, only just what marks are there. I don't know who marked that bill (referring to Exhibit A). As to the bill he claimed to have paid himself (Exhibit B), he testified that he thought a Mr. Glasscock waited on him at the store, and when he paid it Glasscock "just pulled that off and throwed it down, and I paid for it." All the alleged payments were denied by plaintiff, and the original accounts were offered In evidence showing the word "charge" stamped thereon. We find no evidence tending to prove in whose handwriting was the word or abbreviation "Pd."
The law places the burden of proving payment upon the party making such plea, Ferguson v. Dalton, 158 Mo. 323, 59 S. W. 88; West Publishing Co. v. Corbett, 165 Mo. App. 7, 145 S. W. 868; McCormack Harvesting Co. v. Blair, 146 Mo. 380, 124 S. W. 49; Kines v. Jamison (Mo. App.) 277 S. W. 969.
While payment may be established from facts and circumstances from which the inference of payment may be drawn, to...
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