Kessler v. Reese

Rosenberry, J. The defendant complains of the following instruction: “In this case the defendant, in order to sustain the issue upon his part, must convince the jury by a preponderance o.f the evidence that the note has been paid.” It is urged on behalf of the defendant that the burden of proving by a preponderance of the evidence that the note was in fact lost, and of rebutting the presumption that the note had been paid, which arises from its nonpro-duction, was upon the plaintiff. Citing Bergen v. Urbahn, 83 N. Y. 49; Ward v. Munson, 105 Mich. 647, 63 N. W. 498. The infirmity of the argument made by the defendant consists in this: that by the allegations of the answer the [389] loss of the note is admitted and consequently there was no burden upon the plaintiff under the pleadings to establish that fact by a preponderance of the evidence. In the cases cited and relied upon by the defendant there was a failure to produce the negotiable instruments, and no evidence was offered that they were lost or that search had been made therefor, and an entire failure to account for the loss. Those cases are clearly distinguishable from this. Here the loss of the note was alleged in the plaintiff’s complaint, which allegation was specifically admitted by the answer. By the terms of sec. 4190, Stats., upon proof of a lost instrument under the circumstances there described, the party making proof “shall be entitled to recover the amount due thereon as if such note or bill had been produced.” The bond required by sec. 4191 was in this case given, and the provisions of sec. 4190 were complied with. The right of the plaintiff to recover was therefore complete unless payment of the note was shown by the defendant. Under familiar rules the burden of establishing payment was upon the defendant. The defendant argues at considerable length that the evidence is insufficient to sustain the verdict. We have carefully reviewed the evidence and shall not attempt to set it out at length, but are of the opinion, that a jury issue was presented. By the Court. — Judgment affirmed.