Atlantic Discount of Ahoskie, Inc. v. Smith

Mallard, C.J. Plaintiff assigns as error the court’s allowing the defendant to present evidence of payment of the indebtedness when payment was not affirmatively pleaded in defendant’s answer. It is well settled in North Carolina that payment is an affirmative defense and must be specially pleaded. “Any defense which is intended to operate as a discharge of the obligation set forth in the complaint should be specially pleaded and cannot be proved under a general denial. In a complaint to recover a debt, the usual allegations are the execution of the contract and that it is due and unpaid, but a general denial of these allegations puts in issue only the execution of the instrument or contract, and not the fact of payment.” McIntosh, N.C. Practice 2d, § 1236(10) (a). In Ellison v. Rix, 85 N.C. 77 (1881), the Supreme Court said: [595] “It is true the complaint in the case contains the allegation that the bond sued on has not been paid, but that is an averment that the plaintiff is not required to prove. The onus in that case is in the defendant who maintains the affirmative of the issue, and the defense of payment is in confession and avoidance, and is new matter. That is new matter which shows that a cause of action which once existed has been defeated by something which has subsequently occurred. Evans v. Williams, supra. Payment, then, is new matter, and our conclusion is that there was no error in overruling this exception.” In support of her contentions, the defendant cites the case of Whitley v. Redden, 5 N.C. App. 705, 169 S.E. 2d 260 (1969). The Whitley case, as modified and affirmed by the Supreme Court in an opinion reported in 276 N.C. 263, 171 S.E. 2d 894 (1970), is distinguishable from the instant case. The defendant, having failed to plead payment, could not introduce evidence of payment. 70 C.J.S., Payment, § 91. See also Joyce v. Sell, 233 N.C. 585, 64 S.E. 2d 837 (1951); Bank v. Barrow, 189 N.C. 303, 127 S.E. 3 (1925); Bank v. Knox, 187 N.C. 565, 122 S.E. 304 (1924); Averitt v. Elliott, 109 N.C. 560, 13 S.E. 785 (1891); Montague v. Brown, 104 N.C. 161, 10 S.E. 186 (1889). For the foregoing reasons, the plaintiff is entitled to a new trial. New trial. MobRis and Graham, JJ., concur.