
    Taylor v. Willis, Administrator, et al.
    (Decided June 19, 1925.)
    Appeal from Butler Circuit Court.
    1. Executors and Administrators — Evidence Held to Show Note Sued on by Administrator to have Been Matter Outside Partnership Between Deceased and Defendant, and that it had Not Been Paid. — Evidence held to show note sued on by administrator to have been matter outside parnership in stock-buying business between deceased and defendant, and that, it had not been paid.
    2. Bills and Notes — Defendant had Burden to Prove Payment by Satisfactory Evidence. — In action on note, plea of payment was on defendant to prove, it being his duty to support it by satisfactory evidence.
    E. N. MAYHUGH and A. J. BRATCHER, for appellant.
    G. V. WILLIS for appellee.
   Opinion op the Court by

Judge Dietzman

Affirmiug.

Appellee, as administrator of the estate of C. C. Calloway, deceased, brought this action against appellant, E. E. Taylor, on a note for $1,029.82' executed by appellant on May 3, 1919, and payable to appellee’s decedent, one day after its date. Appellant admitted tbe execution of the note and pleaded payment. As tbe plea of payment involved tbe consideration of some partnership accounts between appellant and -Calloway, the case was transferred to tbe equity side of tbe docket. After preparation and submission, the court gave tbe appellee, judgment for tbe amount of the nofe and appellant appeals.

It appears for some years -prior and subsequent to tbe execution of tbis note, appellant and.Calloway were partners in tbe buying, raising ■ and selling of stock. Taylor owned a fárm wbicb Calloway cultivated. Tbe two raised some stock of tbeir own, bought other stock wbicb they fed with tbe produce of the farm as well as with food bought, and later sold' such stock in tbe markets. In all this Taylor and Calloway were equal partners. Calloway seems to have kept tbe accounts and tbe books,-but in a very meagre way. Tbe note-herein sued on -was given by Taylor to Calloway for a loan of money to enable Taylor to purchase some land known as tbe Benson place, and bad no connection with the partnership business at all. Tbe evidence establishes very clearly that tbe note herein sued on had.not been-settled or paid a year prior to.,Calloway’s death, which happened in June, 1922. Appellant introduced testimony tending to show that from tbis time on be drew no more funds from tbe partnership account when cattle were sold but permitted tbe same to be credited by Calloway on tbis note. Tbis evidence, however, was much-' weakened, if not destroyed, by tbe production of checks payable to appellant endorsed and cashed by him subsequent to that time and prior to an alleged settlement wbicb we will shortly discuss and wbicb checks were for Taylor’s share of cattle sold. In February, 1922, Taylor and Calloway met in tbe store of tbe witness, Webster. After some figuring between them Taylor gave Calloway a check for $56.61, and some witnesses testify that Calloway thereupon said “we are even again.” Appellant insists that be and Calloway at tbis time made a settlement of tbeir mutual accounts and that tbis $56.61 represented tbe balance due on such -settlement. Appellee, however, produced a little black book in which it is made clearly to appear that tbis $56.61 was simply tbe balance due Calloway from appellant on the sale of a specific lot of nineteen hogs and did not involve a settlement of this note. A large ledger introduced in evidence tends to prove: that prior to the year 1921 the partied had time and again reached a settlement of their partnership accounts, for we find on many pages a cross running through the accounts and a notation at the bottom “settled in full.” Yet it is proved that in the year 1921, the note herein sued on had not then been paid, which convinces us that Taylor and 'Colloway regarded this note as a matter beside their partnership affairs and did not take it into consideration in the settlement of their partnership accounts. Therefore, there was no inconsistency between Calloway’s statement at this February settlement that “they were even again,” and the fact that the note was then still unpaid. Due to the condition of the hog and cattle market in 1921, the parties had not sold much, if any, stock in that year and the settlement in February, 1922, involving the sale of a specific lot of nineteen hogs credited by certain hogs killed by the parties themselves for their own personal use, no doubt did settle the partnership accounts then between the parties, and Calloway no doubt bona fidely stated that they were again even without in any way meaning thereby that the note had been paid. This is strengthened by the fact that a short while before his death he stated to a witness introduced by appellee that Taylor still owed him $1,000.00, which he had let him have. The appellant’s ground for appeal, although not specifically stated, seems to be that the evidence does not support the chancellor’s finding. From the statement of the evidence as thus outlined by us, it appears that it does. The plea of payment was, of course, upon appellant to prove and it was his duty to support it by satisfactory evidence. This he has failed to cb and the judgment of the lower court is affirmed.  