Fein v. Meier
| Decision Date | 13 June 1904 |
| Citation | 58 A. 114,71 N.J.L. 12 |
| Parties | FEIN et al. v. MEIER. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Essex County.
Action by Joseph Fein and others against Max Meier. Judgment for plaintiffs, and defendant brings error. Reversed.
Argued February term, 1904, before the CHIEF JUSTICE, and GARRISON, SWAYZE, and DIXON, JJ.
Frank E. Bradner, for plaintiff in error.
Benj. M. Weinberg, for defendants in error.
This was an action of replevin, brought by a mortgagor to recover certain animals which the defendant, as mortgagee, had seized under his mortgage. The mortgage was dated May 21, 1902, and was given to secure payment of $565, payable in monthfy installments of $50 each, beginning June 15, 1902. It gave the mortgagee the right to take the cattle and sell them in case of default in payment. The defendant seized the cattle on September 17, 1902, and the principal controversy at the trial arose on the question whether the installments then past due had been paid. Respecting this question the court charged the jury that the burden of proof was on the defendant, and an exception to that charge was duly taken and sealed.
We think the charge was erroneous. The existence of the indebtedness, as stated in the mortgage held by the defendant, being an admitted fact, and the due days for the installments having passed before the seizure, the burden legally rested on the debtor to show payment in the absence of any evidence, payment of a debt recently created by an instrument in writing still outstanding would not be presumed. "The principle that he who alleges himself to be the creditor of another is obliged to prove the fact of agreement upon which his claim is founded, when it is contested, and that, on the other hand, when the obligation is proved, the debtor who alleges that he has discharged it is obliged to prove the payment, is clearly one of those propositions in which every system of jurisprudence must concur in general, whatever particular rules may be adopted as to the mode and form of the allegation by which the necessity of such proof is to be determined." 2 Evans, Poth. 143. 3 Phil. Evid. 407.
The judgment must be reversed, and a venire de novo awarded. Let the record be remitted to the Essex...
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Wilson v. Stevens
...admitted, a prima facie case is made; payment or discharge are affirmative defenses to be set up and proven by defendant. Fein v. Meier, 71 N. J. Law, 12, 58 A. 114; Conlon v. Hornstra, 82 N. J. Law, 355, 83 A. It is logical to apply the same rule in a suit to foreclose a mortgage. The mort......
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Applegate v. Quackenbush.
...the basic indebtedness has not been paid. Although payment was averred there was no proof offered to sustain that defense. Fein v. Meier, 71 N.J.L. 12, 58 A. 114, affirmed 74 N.J.L. 597, 65 A. 1117; Conlon v. Hornstra, 82 N.J.L. 355, 83 A. 183. Moreover, the mortgagor did not appear at the ......
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Hargadine-McKittrick Dry Goods Co. v. Breedlove
... ... 65, 123 P. 863; Rice v ... Kabak, 72 Misc. 16, 128 N.Y.S. 1092; Ives v ... Male, 75 Misc. 387, 135 N.Y.S. 526; Fein v. Meier ... (N. J. Sup.) 58 A. 114. Counsel for defendant in error ... do not call our attention to any authorities on the subject ... ...
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Hargadine-Mckittrick Dry Goods Co. v. Breedlove
...Line Co., 87 Kan. 65, 123 P. 863; Rice v. Kabak, 72 Misc. 16, 128 N.Y.S. 1092; Ives v. Male, 75 Misc. 387, 135 N.Y.S. 526; Fein v. Meier (N. J. Sup.) 58 A. 114. Counsel for defendant in error do not call our attention to any authorities on the subject. ¶4 The judgment of the trial court sho......