Executors v. Gregory's Adm'r.

• Decision Date: 06 March 1906
• Citation: 60 W.Va. 118
• Court: West Virginia Supreme Court
• Parties: Dodrill's Executors v. Gregory's Administrator.

60 W.Va. 118

Dodrill's Executors

v.Gregory's Administrator.

Supreme Court of Appeals of West Virginia.

Submitted February 6, 1906.

Decided March 6, 1906.

1. Bills and Notes Payment Burden of Proof.

In an action upon a promissory note, where payment is relied on as a defense, the burden is on the defendant to prove such defense by a preponderance of the testimony. (p. 120.)

2. Same Presumption of Payment.

Where an action is brought upon a promissory note, and on the trial it is admitted that the note was found among the papers of the maker, after his death, there arises from this admission a presumption that the note was paid, but not such a presumption as changes the burden of proof to show payment the fact of the note having been so found being a matter which can be given in evidence by the defendant to show payment. (p. 120.)

3. Trial Instructions.

An instruction which tells the jury "if they believe" instead of "if they believe from the evidence", they shall find, &c, is not erroneous, if in another part of the instruction, or in other instructions given in the case, the attention of the jury is specifically directed to the evidence by telling them that they shall base their verdict thereon. (p. 120.)

Error to Circuit Court, Webster County.

Action by C. Mc. Dodrill's executors against V. S. Gregory's administrator. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Linn, Byrne & Cato, for plaintiff in error.

E. H. Morton, for defendants in error.

Sanders, Judge:

This is an action of assumpsit, brought in the circuit court of Webster county, by C. Mc. Dodrill, against Sherman Gregory, administrator of the estate of V. S. Gregory, deceased. Dodrill having died, the action was revived in the name of his executors. The object of the action is to recover the balance claimed to be due on a note executed by V. S. Gregory, in his life time, to C. Mc. Dodrill. The defendant filed two special pleas, which, however, are not copied into the record, and also filed the plea of non-assumpsit.

On the trial, which resulted in a judgment in favor of the plaintiffs, it was admitted that the note sued on was found in the papers of V. S. Gregory after his death.

The plaintiffs claim that the note in question was left with Gregory by Dodrill, for the purpose of having Gregory to indorse a credit thereon, and that it has rot been paid. The jury, after hearing all the evidence, found this fact for the plaintiffs, which was approved by the trial judge, and we cannot disturb this finding, unless the evidence wholly fails to establish the plaintiffs' case. Upon a review and careful consideration of the evidence, we not only conclude that the verdict is justified thereby, but think it is eminently proper.

The defendant complains that the court improperly instructed the jury for the plaintiff. The first instruction told them that the burden was on the defendant to show, by a preponderance of the testimony, that the note in question had been paid. This proposition is so elementary that it is hardly necessary to refer to it. But it is said that inasmuch as the note was found among the papers of Gregory, after...