Opinion

Heart of the Valley Motel, Inc. v. Edwards

  • 111 N.C. App. 896
  • 433 S.E.2d 466
  • 1993 N.C. App. LEXIS 936
Court
Court of Appeals of North Carolina
Filed
Sep 7, 1993
Status
Published
Author
Greene
On the bench
Eagles, Greene, Lewis
Cited by
0 cases

The opinion

Judge GREENE

dissenting.

I do not agree with the majority “that the trial court erred in placing the burden of proof on plaintiff to show nonpayment.” The general rule placing the burden of proving payment upon the party asserting payment does not apply in this case because the plaintiff seeks recision of the deed transfer on the grounds of nonpayment. See 70 C.J.S. Payment § 62 (1987). As such, nonpayment is an essential element of the plaintiff’s case and the plaintiff has the burden of proof on this issue. 70 C.J.S. Payment § 69, at 58 (1987) (“in a contract action, plaintiff has the burden of proving the nonpayment where the nonpayment is the very breach alleged”). Accordingly, the trial court correctly instructed the jury and did not err in denying plaintiff’s motion for a new trial.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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