Borel v. Fusillier

Porter, J. delivered the opinion of the court. This action is brought to recover the last instalment of the price of certain slaves, which the defendant purchased of the plaintiif. There was judgment against the former, in the court below, and he has appealed. The sale was made at one, two, and three years’ credit, with a further stipulation, that in case the purchaser choose, he might postpone the payment of the whole price for two years after the last instalment, on paying interest at eight per centum per annum on the amount of each instalment as it became due. There is no evidence on record in respect to the first two instalments; and the appellant contends that, in the absence ol all proof relating to them, this action should be considered premature, and must be dismissed; for that if he paid the interest on them, or if he has discharged the principal, he has a right to demand an extension of credit on the last instalment for two years, on paying interest at eight' per centum. We are, however, of opinion that if the defendant intended to rely on the performance of certain acts on his part,, which would authorize him to claim an extension of the credit, that it was his duty to establish those facts, and that the plaintiff is not required to shew a nonperformance. The pleadings in this case do not in any manner authorize a different conclusion. The allegation in the petition, that the interest was not paid, is a negative assertion, which, according to the familiar rules of evidence, throws the proof on the adversary. It is therefore ordered, adjudged, and decreed, that the Judgment of the district court be affirmed, with costs.