Defendants in error brought an action at law against plaintiff in error to recover on a promissory note. There was a plea of payment and at the conclusion of all the testimony an instructed verdict was entered for the plaintiff. Defendant took writ of error. The instructed verdict is the basis for the sole assignment of error here.
The rule is elementary that when the defendant in an action on a promissory note tenders a plea of payment the burden is on him to prove his plea by a preponderance of the evidence. International Harvester Co. vs. Smith, 51 Fla. 220, 40 So. 840, 3 R. C. L. 1285. The evidence in this cause has been examined and it fails utterly to meet the requirements of this rule.
The judgment below is accordingly affirmed.
Affirmed. *Page 337
WHITFIELD, P.J., AND DAVIS, J., concur.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.