(after stating the facts). It is contended that the court erred in the refusal to give said instruction numbered 4, and that there is no testimony to sustain the verdict.
There is no doubt but that, under ordinary conditions, it devolves upon the party pleading payment as a defense to prove it. Hayes v. Dickey, 67 Ark. 169; Blass v. Lawhorn, 64 Ark. 466.
It is also true that possession of a promissory note by the maker is presumptive evidence of its payment, and that, although receipts of payment are prima facie evidence thereof, they are open -to explanation and contradiction, but the burden of overcoming the presumption and prima facie case and making the explanation devolves upon the party giving the receipt, and surrendering the note. Springfield & M. Rd. Co. v. Allen, 46 Ark. 217; Real Estate Bank v. Rawdon, 5 Ark. 559; Greer v. Laws, 56 Ark. 37; Woodward v. Campbell, 39 Ark. 580, 583; Hollenberg v. Lane, 47 Ark. 394; Fidelity Mutual Life Ins. Co. v. Click, 93 Ark. 162.
The court correctly instructed the jury that the question for them to decide was whether or not the note had been paid, and that when it was shown that it had been marked “Paid” by appellant and delivered to appellee, appellant, to avoid the result of this receipt of payment on the ground of mistake, had the burden of proof to overcome the presumption of payment by a preponderance of the testimony.
The sole question, as the court said, to be determined by the jury was whether or not the note had been paid, and appellant, having alleged its cancellation and delivery to the maker by mistake, and that it had not in fact been paid, could not have recovered in the case but for the introduction of testimony, and the burdén of proof was therefore upon it to establish its claim, and its testimony all tended to show that such was the fact, but appellee testified that he had paid the note by a check, and the jury found in his favor; and while the testimony is not satisfactory, we can not say that there is none sufficient to sustain the verdict.
Appellant having, by its pleadings, assumed the burden of proof to show that there was no payment of the note but a mistake in the delivery thereof to the maker marked “Paid,” the issue was fairly submitted to the jury by the instructions given, and the court did not commit error in refusing appellant’s requested instruction numbered 4. Hollenberg v. Lane, 47 Ark. 394.
The judgment is affirmed.