Ball v. Elliott

Plaintiff’s assignors were proprietors of a hotel, from whom defendant’s decedent had purchased articles and borrowed money in the aggregate of $281.95, for which this action is brought. The answer, in addition to general denials,-, sets up as a defense and counterclaim the payment by decedent, on the same day on which the foregoing indebtedness was incurred, of over $500.

After plaintiff had proved his case, the defendant merely put in evidence two checks, aggregating $500, to the order of plaintiff’s assignors, and indorsed by them, but signed by defendant’s decedent as executor of a named estate. Whatever presumption of fact might have arisen from the giving of his individual checks by defendant’s decedent under the circumstances (see 30 Cyc. 1271-1273), it can hardly be claimed, I think, that any presumption of payment of his individual debt arises from the giving by defendant’s decedent of checks of an estate of which he was a trustee.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.