Williamson v. Reddish

¶1I. Sometime after the execution of the ' original note it was lost or mislaid by plaintiff, and on application to defendant a new note was made. The new note was for one hundred dollars. The plaintiff claims that it was made for one hundred dollars by mistake, and that it should have been for two hundred dollars. The defendant claims that at the time the.new note was made he paid plaintiff one hundred dollars principal and twenty dollars interest. The. plaintiff denies the alleged payment. At the time the new note was made the plaintiff delivered to defendant a receipt, of which the following is a copy:

“ August 4th, 1869.

“ This receipt I give against a lost note that I had against • George S. Eeddish and James Kenyon, surety to it. If this note ever comes to hand it shall be null and void and of no force. This note calls for two hundred dollars, and was dated August 4, 1868. (Signed.) “ Elijah Williamson.”

¶2x. receipt: note! Iost Counsel for defendant insist that this paper is more than a receipt, that it is a contract and cannot be contradicted by parol in this proceeding, and they cite Stapleton v. King, 33 Iowa, 28, and other cases. We do not think that any of the cases cited support this position, but are united in the belief that there are none of the elements of a contract in this paper further than is contained in a simple receipt for money or the like. The obligation that the lost note shall be invalid is nothing more than would be implied in an ordinary receipt for money in payment of the note.

¶3II. The court instructed the jury inter alia as follows:

¶42. promtsreceipt?46’ proof.“ 2d. The receipt which the defendant has introduced in evidence makes out a prima facia case for the defendant as to what it recites or sets out, but the same is open to explanation and the burden of explaining the same is upon the plaintiff.”

¶5*552“4th. One of the principal matters in controversy in this suit is the alleged payment of $120, which defendant alleges he paid the plaintiff on the indebtedness now in suit. The burden of showing such payment is on defendant, and if the jury find from the evidence that the defendant paid the $120 as claimed, then you will allow him a credit for such sum at the day of payment.

¶6“ 5th. It is claimed by the plaintiff that at the time of the execution of the $100 note there was a mistake, and that the note should have been for $200 or more; the burden.of proof is on the plaintiff to establish such mistake, if any, by a preponderance of evidence.”

¶7Exception was taken by defendant to the fourth instruction. There is no question made as to the second and fifth instructions above set forth, and we believe them tobe correct. The plaintiff in his petition alleges the mistake, and of course it . was incumbent on him to show it. On the trial the execution and delivery of the receipt were admitted, and the plaintiff could not recover without exjdaining or contradicting the receipt. Until this be done the defendant need offer no proof; •he might stand on the receipt.

¶8This being the attitude of the case before the court, there was error in instructing the jury that the burden was on the defendant to prove the payment of the $120. This he did by the production of the receipt, more effectually than he could by parol evidence, and there was no necessity for more evidence on his part, and a verdict must necessarily have followed for him, unless the plaintiff could by evidence explain or vary the receipt, consistent with his theory of the case.

¶9The defendant at the trial introduced the receipt and rested. The whole controversy thereafter was an effort on the part of plaintiff to show that the receipt .was founded in mistake. While it was technically true that the burden was on the defendant to show payment, yet it seems to ps that the court, in the fourth instruction, lost sight of the legal effect of the receipt.

¶10We cannot escape the conclusion that the omission to keep before the minds of the jury the legal effect of the receipt might, *553to say the least, have led them into the mistaken belief that something more was necessary upon the defendant’s part, to show payment, than the -introduction of the receipt. If the instruction had this tendency to mislead it is erroneous. See Price v. Mahoney, 24 Iowa, 582.

¶11As the case must be reversed for this error it is unnecessary to examine the question as to whether the verdict was supported by the evidence.

¶12Eeversed.