On Motion for Rehearing. It is asserted that this court erred in holding that the credit endorsed on the note nineteen and a half years before suit was brought was sufficient to overcome the presumption of payment, for the reason that the agreement for this credit (which it is said was the evidence of nonpayment) was made at a date prior to the date of the credit, and that this unproved date may have been prior to the twenty-year period. That therefore appellee had not met the burden of rebutting the presumption of payment. *Page 217
The burden on the appellee to overcome the presumption was to prove that the note was not paid. The proof that partial payments were made within the twenty-year period will rebut such presumption.
The facts seem to be that appellant sent from El Paso, Texas, to appellee at Alamogordo, New Mexico, a claim against a third person, for which he would earn a fee, with instructions to appellee to apply that fee on the note in question when received. This claim of fee was not assigned to appellee; it belonged to appellant until applied. Following appellant's instruction the appellee did apply the fee upon the note when it was received by him, and that date was within the twenty-year period. We think this was sufficient proof that the note had not been paid at the time the credit was given, for otherwise the appellant would not have permitted such application of the funds, which he admits were credited with his consent.
Any competent evidence tending to show the debt was not paid is sufficient to rebut the presumption of payment, if clear and convincing. We find the proof satisfactory under the rule. Sheafer v. Woodside, 257 Pa. 276, 101 A. 753, 1 A.L.R. 775; Talbot v. Hathaway, 113 Me. 324, 93 A. 834, 1 A.L.R. 772, and annotation 1 A.L.R. at page 817 et seq.
The motion for rehearing is overruled, and it is so ordered.
ZINN, SADLER, MABRY, and BICKLEY, JJ., concur.