delivered the opinion of the court.
The petitioner sues for a balance of account, claimed for services rendered as the agent of the defendant. For answer, the defendant “ denies all and singular the allegations contained in the petition, and pleads payment and want of amicable demand,” and concludes with reconvening the plaintiff for nine hundred and forty-five dollars, for which he prays judgment, with costs.
At the trial of the cause in the court below, the plaintiff introduced no testimony, but relied solely upon the plea of payment as an acknowledgment of the debt. The court was of that opinion, rendered judgment accordingly, and the defendant appealed.
No attempt was made to establish the payment, or to prove . the sum claimed in reconvention. The controversjr is made, therefore, to turn entirely upon the effect of the plea of payment, and is the only question presented for our consideration. We do not think it one of difficult solution.
The plea of payment admits the debt once existed, but has heen paid; and unless the defendant proves payment, it will be considered as still existing*, and the plaintiff will have judgment. Where the defendant pleads the general issue and payment, the pleas are contradictory, and the latter will prevail.• The plaintiff demands a sum of money, which he alleges to be due; the defendant replies he has paid it. It is plain the existence of the debt is thereby acknowledged; for he cannot have paid a debt which had no existence. Unless he can therefore prove payment, it follows that the debt' still exists.
But the defendant insists, that by denying generally, he disputes the debt; that is, he denies the debt ever existed, though he avers he paid it.
It would be difficult for him, by any subtlety of logic, to extricate himself from this contradiction.
The question then recurs, which of the contradictory pleas shall prevail? We answer, the plea.of payment. , This court has frequently decided this point, conformably to the opinion here expressed. 3 Martin, N. S., 77, 375. 6 Ibid., 227, 250.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.