Hollenberg v. Lane

Cockrill, C. J. Hollenberg delivered a piano to Mrs. Lane, the appellee, under a contract of sale upon the instalment plan, receiving a payment in cash from her, taking her promissory notes as evidence of the unpaid purchase price, and stipulating that the title should remain in him until all the notes were paid. • After the notes were all due, the greater part of them remaining unpaid, Hollenberg brought this action of replevin to recover the piano. Mrs. Lane’s defense was based upon an alleged compliance with her contract by payment of the notes. To sustain this defense she produced in evidence the contract of purchase and the notes which she had executed and delivered to Hollenberg. It was in proof, on the other hand, that Hollenberg had placed the notes in the hands of an attorney at Mrs. Lane’s place of residence for collection; that he instituted suit upon them, or a part of them, against her, but caused it to be dismissed, sayingat the time, that Mrs. Lane’s husband was going to pay them off; that afterwards Lane delivered the contract and notes to his wife, the appellee, informed her that he had paid them and took from her the release of a debt he owed her as repayment of his outlay. It was agreed that Hollenberg never received any money from his attorney on account of the notes, and that he had never specially authorized the attorney to settle the claim for less than its face and interest. This was the whole case as presented to the jury. Their verdict was for the defendant. Under the contract Mrs. Lane’s title to the piano was to become absolute on payment of the purchase price. The production of the notes and contract executed by her was sufficient prima facie to bar the plaintiff’s action without going on to prove an actual payment of the notes. Gibbon v. Featherstonhaugh, 1 Starkie, 92. Possession of a promissory note by the maker is presumptive evidence of its payment. The fact that the notes in this case were received from an attorney who held them for collection does not alter or rebut the presumption. The reason that lies at the bottom of the rule that possession by the maker raises a presumption of payment, is the common practice of men owning notes not to deliver them to the obligor except on payment, and we are not informed that a different custom prevails among attorneys and other collecting agents. The presumption is not simply that the debt has been released or discharged as by accord and satisfaction, but that the money due on the notes has been paid according to their tenor. Lane v. Farmer, 13 Ark., 63; Lawson’s Presumptive Ev., Rule 75, pp. 346 et seq.; 1 Greenl. Ev., sec. 38. The appellant’s attorney had authority to receive payment for him, and it was his duty to retain possession of the notes until payment was made; if he parted with them without payment or upon an unauthorized compromise, the burden was on the plaintiff to show it. The law never presumes the perpetration of a wrong. Gauss v. Orr, 46 Ark., 129; Potter v. Titcomb, 7 Me., 302. And it is not material, as one of the appellant’s rejected prayers for instructions would make it, that the husband was not expressly authorized to represent the wife at the time he received the notes from the appellant’s attorney. Where a husband pays the debt of his wife, it is natural to suppose that he*does so either for the purpose of making a voluntary settlement of the amount paid upon her debt, or else under the stress of an implied mandate to protect her interest, and a recognition of his act by her will amount to an acceptance or ratification. What was done in this case was ratified by the wife and the husband was reimbursed to his satisfaction. Nor was the non-receipt of the proceeds of the notes by Hollenberg proof of non-payment. It may have tended to prove negligence or a conversion on the part of Hollenberg’s attorney, but that was a matter that did not concern Mrs. Lane, and was foreign to the issue. The presumption of payment raised by the proof the appellee offered was not met and rebutted. Affirm.