Goodyear and House Ltd. v. O'Driscoll, (1971) 1 Nfld. & P.E.I.R. 465 (NFCA)

JudgePuddester, Higgins and Mifflin, JJ.
CourtNewfoundland Court of Appeal
Case DateJune 24, 1971
JurisdictionNewfoundland and Labrador
Citations(1971), 1 Nfld. & P.E.I.R. 465 (NFCA)

Goodyear v. O'Driscoll (1971), 1 Nfld. & P.E.I.R. 465 (NFCA)

MLB headnote and full text

Goodyear & House Limited v. O'Driscoll

Indexed As: Goodyear and House Ltd. v. O'Driscoll

Newfoundland Supreme Court

On Appeal

Puddester, Higgins and Mifflin, JJ.

June 24, 1971.

Summary:

Appeal Court allowed appeal and overruled the decision of the Trial Court which denied the plaintiff $80. of its claim for $93.37 as the balance owing on a statement of account. Trial Court had varied a decision of a Magistrate dismissing the plaintiff's claim entirely. The Defendant alleged by way of defence that the account had been paid down by a cheque in the amount of $100.00 and that the receipt for $20.00 given by the plaintiff in return was in error. Both lower courts appeared to place the burden of proof on the plaintiff with regard to this defence.

Appeal Court held that the burden was on the defendant to establish the defence of payment and since the defendant had not discharged the burden, the plaintiff's action succeeded.

Practice - Topic 1306

Pleadings - Evidence - Burden of proof - Defendant alleging as a defence incorrectness of receipt - The Newfoundland Court of Appeal held that that burden was on defendant to prove his allegation that the receipt was incorrect and not on plaintiff to disprove the allegation.

Counsel:

Clyde K. Wells, for the appellant;

Leonard A. Martin, for the respondent.

The judgment of the Court was delivered by Puddester, J.

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