#### Mary S. H. JACOBS, Appellant, v. Berrien BECKS, Jr., Appellee.

No. GG-484.

District Court of Appeal of Florida, First District.

March 3, 1978.

Rehearing Denied March 31, 1978.

*1242R. Michael Kennedy of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellant.

Wayne L. Hogeboom of Becks & Becks, Daytona Beach, for appellee.

BOOTH, Judge. .

This cause is before the Court on appeal from the final judgment of the Circuit Court, Volusia County, denying recovery on promissory notes on the grounds that no evidence was presented of non-payment of the notes. The question here is whether Plain tiff/payee’s prima facie case for recovery on a promissory note requires evidence, outside the authenticated instrument itself, that the debt is unpaid.

Plaintiff is the named payee on two promissory notes in the principal amounts of $26,926 and $1,500, dated June 12, 1958, and July 12, 1951, respectively. The two notes, as well as a third instrument executed April 12, 1969 by the payor which waived the statute of limitations as to any indebtedness to the Plaintiff, were introduced into evidence in the suit against the payor’s estate.

The payor, Mary Hewitt, for many years a practicing attorney, is the mother of the payee, Mary Jacobs, and resided in her home for several years prior to Mrs. Hewitt’s death in 1973. Plaintiff was appointed personal representative of her mother’s estate.

Plaintiff duly filed a sworn claim in the estate for sums loaned and unpaid at the death of the deceased. A representative ad litem was appointed and the claim denied, resulting in this suit. The estate denied the indebtedness and affirmatively asserted in its answer the Statute of Limitations, the Statute of Frauds and set-off. The affirmative defense of payment was not pleaded.

The notes were introduced into evidence over the estate’s objection based on the dead man’s statute.1 No question was raised at the time the notes were introduced, or at any other time during trial, as to Plaintiff’s possession of the instruments.

Neither party presented evidence of payment or lack of payment. Both parties assert here that the dead man’s statute prevents evidence as to payment.2 That question was not directly ruled on below and is not before us now.

*1243The trial court’s original order denying recovery states that the record is “void of any evidence of non-payment.” On Petition for Rehearing, Plaintiff pointed to Defendant’s failure to plead or present evidence of payment, an affirmative defense. In the alternative, Plaintiff moved the court to reopen the case to allow Plaintiff to present evidence of non-payment, if that was her burden to prove. In denying rehearing and denying re-opening of the case, the trial court ruled in part as follows:

> “It is true . . . that payment is an affirmative defense; however it is in this Court’s opinion likewise elementary law that a Plaintiff must show a prima facie case to prove her cause of action before the Defendant is required to proceed with his affirmative defenses, • and since this Court has concluded that the evidence is insufficient to raise a presumption of non-payment or breach of the obligations alleged it was not necessary for the defense to proceed with the affirmative defense . . ”

On appeal, Defendant asserts for the first time that the notes may have been retained by the deceased payor and that Plaintiff could have recovered possession of the notes in her capacity as personal representative of the deceased. Defendant asserts that this possibility prevents a presumption of non-payment which would normally arise from the payee’s possession of the uncancelled instrument of indebtedness.3 Here, there is no evidence which would support such a defense, even had it been pleaded. Plaintiff is not required to present evidence explaining her possession since that fact was never at issue.

The trial court’s ruling was that the Plaintiff failed to present evidence outside the promissory notes themselves that the debt was unpaid and therefore failed to establish a prima facie case. That decision is contrary to *Knauer*v. *Levy,*115 So.2d 776, 777 (3d DCA 1959), wherein the court stated:

> “The sole question to be decided is: In a suit upon a promissory note must the plaintiff prove by evidence dehors the instrument that the debt is due and unpaid in order to establish a prima facie case?

> The promissory note is itself evidence of the existence of the debt and its introduction into evidence is sufficient to establish a prima facie case. When it is regularly admitted into evidence no additional evidence of the present existence of the debt is necessary upon the case of the Plaintiff.”

In *Touchberry v. Nemec,*264 So.2d 466, 467 (4th DCA 1972), the court stated:

> “Payment is an affirmative defense, the burden of proof of which rests upon the defendant . . . Appellant, having satisfactorily shown the authenticity of the note and the signature of defendant’s decedent, and having placed in evidence the original of the note, established a prima facie case and had no burden to prove that the note remained unpaid.”

Plaintiff’s possession of the uncan-celled notes at the time of trial is consistent with her interest as the named payee in the notes and is presumed to be proper. The presentation of these instruments, authenticated as to execution by the payor and regular on their face, establishes a prima facie case for recovery on the notes. There is no requirement that the Plaintiff present evidence as part of her case in chief that the notes remain unpaid, and no issue was made by Defendant’s pleading or proof as to either payment or right to possession.

Accordingly, the judgment is REVERSED and the cause REMANDED for entry of judgment on behalf of Plaintiff.

ERVIN, J., concurs.

SMITH, Acting C. J., dissenting with opinion.

1

. *Florida Statute*§ 90.05.

2

. *Broward National Bank v. Bear,*125 So.2d 760 (2nd DCA 1961).

3

. *Speier*v. *Lane,*254 So.2d 823 (3d DCA 1971).

SMITH, Acting Chief

Judge, dissenting:

This is a simple case of a plaintiff failing to adduce necessary evidence which one must assume was readily available to plain*1244tiff; a trial judge who quite properly declined to speculate on what plaintiff might have been able to prove, and who therefore entered judgment for defendant; and an appellate decision that covers the omission in plaintiff’s proof by unduly stretching a legal presumption.

Without a doubt, a plaintiff-payee who proves his possession of the defendant-maker’s matured promissory note, and who introduces the authenticated note into evidence, has made a prima facie showing of the defendant’s subsisting obligation. Ordinarily it troubles plaintiff little to add that the note is unpaid. Here, plaintiff’s counsel evidently considered that such testimony by his client would be barred by Section 90.05, Florida Statutes (1975) — a matter we need not decide — and so plaintiff relies entirely on the presumption of nonpayment which attends the payee’s possession of the note, as in *Knauer v. Levy,*115 So.2d 776, 777 (Fla.3d DCA 1959):

> The administrator [of the deceased payee] was the only witness for the plaintiff. Upon his testimony, that he found the note among his uncle’s (William Liebow’s) papers, it was admitted into evidence. The administrator was unable to testify of his own knowledge as to what amount, if any, was due upon the debt represented by the note.

> 

> The promissory note is itself evidence of the existence of the debt and its introduction into evidence is sufficient to establish a prima facie case.

The dictum in *Touchberry v. Nemec,*264 So.2d 466 (Fla.4th DCA 1972) does not reveal whether the payee’s possession of the note was proved as it was in *Knauer.*I consider, nevertheless, that plaintiff’s possession of the note' is part of plaintiff’s prima facie showing, and that possession ought not to be presumed, so thereby to presume further that the defendant’s debt is subsisting. That, I think, is a matter of common sense as well as of law. That is the implicit holding of *Speier v. Lane,*254 So.2d 823, 824 (Fla.3d DCA 1971):

> [Tjhere is evidence that Speier retained possession of the collateral notes from the date of execution until the time of trial, or slightly over eight years after they were argued to have been extinguished by the accord and satisfaction. These notes were not returned, destroyed, marked paid, or otherwise marked. Thé appellees have cited several cases for the principles, which appear well-settled, that possession of an uncanceled note raises a rebuttable presumption of non-payment and that the burden of proving payment is upon the party asserting payment.

See also J. Ogden, *Negotiable Instruments*632 (5th ed. 1947):

> An allegation that the plaintiff is the owner *and holder*of a note is sufficient prima facie allegation that he is the holder in due course with the right of recovery. And *possession and production*of the note uncanceled constitute prima fa-cie evidence of its non-payment, [emphasis added]

Plaintiff’s counsel accurately paraphrased that principle in argument to the trial court on motion for rehearing:

> I would maintain that just the mere fact of a promissory note speaks for itself. And that is buttressed by the fact that the promissory note is not marked paid in full but still in the possession of the creditor.

The major flaw in plaintiff’s case was and is that there was no proof of any kind that the notes were “still in the possession of the creditor.” Plaintiff did not testify that the notes were in her possession at the time of trial, or at the maker’s death, or on the dates shown on the • notes, or ever. Even assuming that plaintiff might not have testified that the decedent never paid the notes, *Broward Nat’l Bank of Ft. Lauderdale*v. *Bear,*125 So.2d 760 (Fla.2d DCA 1961), plaintiff surely could have testified to the fact, if it was a fact, that she possessed the notes — a fact of which she had knowledge independently of any transaction with the deceased, although possession presumably resulted from such a transaction. *See Seeba v. Bowden,*86 So.2d 432, 433 (Fla.1956) (dictum).

*1245Absent proof of plaintiff’s possession of the notes, no evidentiary presumption of nonpayment arose, and there was no occasion for the administrator ad litem to plead or to prove, as the majority seem to have required, that plaintiff’s possession of the notes was explicable on grounds other than that the notes were subsisting obligations.

I know of no reason why the administrator ad litem, who neither admitted nor was called on to admit that plaintiff possessed the notes, should now be held to have tacitly conceded the critical evidentiary point on which the majority bases its judgment of reversal. I know of no reason why we should assume the existence of a critical fact, unproved, in order to reverse a judgment entered upon a fair trial. Plaintiff’s case rests entirely on the fact that a promissory note payable to plaintiff, signed by the decedent, was introduced into evidence by plaintiff’s lawyer. In my opinion, that act has only slightly more legal significance than if plaintiff’s counsel had thrown his hat upon the table. That event does not support the chain of presumptions necessary for a reversal. I would affirm.