White v. McCarter , 261 N.C. 362 ( 1964 )

134 S.E.2d 612 (1964) 261 N.C. 362

James Henry WHITE and wife, Wealthy White,
v.
Hattie McCARTER, Reginald L. Frazier, Individually, and Reginald L. Frazier, Trustee.

No. 104.

Supreme Court of North Carolina.

February 26, 1964.

Earl Whitted, Jr., Goldsboro, for defendant appellants.

Ward & Ward, New Bern, for defendant appellees.

PER CURIAM.

McCarter's cross-action against Frazier raises the simple question whether Frazier had fully accounted for the $900 collected by him and, if not, the amount of his default. The court placed the burden upon McCarter to satisfy the jury by the greater weight of the evidence that Frazier is indebted to her and the amount of the indebtedness. Of this, Frazier is in no position to complain. The purport of his pleadings is that he collected $900 for McCarter and paid it to her in full. Payment is an affirmative plea and the burden of showing payment is on the one who relies on payment as a defense. Davis v. Dockery, 209 N.C. 272, 183 S.E. 396; Furst v. Taylor, 204 N.C. 603, 169 S.E. 185; Thomas v. Gwyn, 131 N.C. 460, 42 S.E. 904. Frazier's contention that the burden of the issue was upon McCarter to satisfy the jury of the indebtedness and the amount thereof by clear, cogent and convincing evidence is without foundation. Henley v. Holt, 221 N.C. 274, 20 S.E.2d 62, relied on by Frazier, is not in point.

In the trial below we find

No error.