Lett v. Markham

145 S.E.2d 907 (1966)

266 N.C. 318

G. G. LETT, Administrator of the Estate of Curley Lett, Deceased, v. James A. MARKHAM and wife, Marie W. Markham.

No. 526.

Supreme Court of North Carolina.

January 14, 1966.

*908 Bunn, Hatch, Little & Bunn, by E. Richard Jones, Jr., and Thomas D. Bunn, Raleigh, for plaintiff appellant.

J. C. Keeter, Raleigh, for defendant appellees.

HIGGINS, Justice.

The record evidence, consisting of the option and the deed, disclosed the sale of the described lands by the plaintiff's intestate for the sum of $5,000.00, either in cash or upon specific terms: $100.00 cash at the time the option was signed; $1,400.00 in addition to be paid on the day the option was exercised, the balance of $3,500.00 to be in annual payments beginning January 1, 1964. The deed recited a consideration of $10.00 "and other valuable considerations."

The defendant, James A. Markham, by adverse examination, admitted he had paid in cash only the $100.00 for the option and the $1,400.00 the day it was exercised. He claimed in his adverse examination that he had paid the $3,500.00 balance due by giving the plaintiff's intestate credit on obligations which intestate was due him.

The defendant's admission that he had not paid in cash or in accordance with the terms of the option, placed upon him the burden of showing he had paid or accounted to the intestate for the sum of $3,500.00 and interest thereon in satisfaction of the amount due. The contract called for payment in cash on delivery of deed, or in cash according to the fixed time schedule if not paid on delivery of the deed. The admission shows failure to pay in cash as required. "A debtor, claiming payment by the transfer to the creditor of something other than money, has the burden of establishing all the facts necessary to constitute such transfer a payment." 70 C.J.S. Payment § 96, p. 302. "The defense of payment may be supported either by proof of payment in money or by proof that some other thing was given and received in payment. If the contract is ambiguous or is silent on the medium of payment, parol evidence with respect thereto is admissible. But parol evidence is not admissible where the contract is free from ambiguity upon the question, to show that payment was to be made in a manner other than that specified in the contract." 40 Am.Jur., Payment, § 294, p. 902. "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." Auto Finance Co. of North Carolina, Inc. v. McDonald, 249 N.C. 72, 105 S.E.2d 193; Iredell County v. Gray, 265 N.C. 542, 144 S.E.2d 600; White v. McCarter, 261 N.C. 362, 134 S.E.2d 612.

The evidence was sufficient to raise an issue of fact as to the payment of the $3,500.00 and interest. The court committed error in deciding the issue as one of law. The judgment of involuntary nonsuit is

Reversed.