White v. Logan , 240 N.C. 791 ( 1954 )

83 S.E.2d 892 (1954) 240 N.C. 791

Jim WHITE
v.
H. A. LOGAN, Jr.

No. 310.

Supreme Court of North Carolina.

October 20, 1954.

Horace Kennedy, Shelby, for plaintiffappellant.

No counsel contra.

JOHNSON, Justice.

It is well settled that the plea of payment is an affirmative one, and the general rule is that the burden of showing payment must be assumed by the party interposing it. Davis v. Dockery, 209 N.C. 272, 183 S.E. 396; Furst v. Taylor, 204 N.C. 603, 169 S.E. 185; Collins v. Vandiford, 196 N.C. 237, 145 S.E. 235; Swan v. Carawan, 168 N.C. 472, 84 S.E. 699. See also Joyce v. Sell, 233 N.C. 585, 64 S.E.2d 837; 8 Am.Jur., Bills and Notes, Sec. 1035; 40 Am.Jur., Payment, Sec. 278. The burden of proof is a substantial right. Davis v. Dockery, supra; Collins v. Vandiford, supra.

Here the defendant's plea of payment cast on him the burden of proving the affirmative of the issue thus raised However, the trial court inadvertently placed the burden of proof on the plaintiff. This entitles the plaintiff to a new trial

New Trial.