IRVIN POLLAK, APPELLANT,
v.
GRACE MEYER, EXECUTRIX OF THE ESTATE OF JEROME MEYER, DECEASED, APPELLEE
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The court held that the plaintiff presented a prima facie case and the lower court erred in finding a presumption of payment arose.
Plaintiff alleged he loaned $1,000.00 cash to defendant's decedent, who died four days later. A witness corroborated the loan. The defendant executrix…
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This is an appeal from a final judgment entered pursuant to a directed verdict at the close of all evidence in favor of defendant-appellee Meyer, an executrix, in a jury trial. Plaintiff filed a complaint alleging a loan by him of $1,000.00 in cash to defendant’s decedent on August 24, 1968, which was still due and owing; defendant answered by a general denial, and did not raise the affirmative defense of payment; see Rule 1.110(d), Florida Rules of Civil Procedure, 30 F.S.A.
A disinterested witness to the transaction testified that defendant’s decedent asked for and received $1,000.00 in cash from the plaintiff, that this was a loan, and that the decedent died four days later. Plaintiff testified that he was present at that time and place, but shortly after the loan he entered the hospital. The plaintiff rested, and the defendant offered no evidence.
The issues on appeal are: Did plaintiff present a prima facie case? Did the court err in deciding that a presumption of payment arose? We hold that the plaintiff did present a prima facie case and that *797the lower court erred in deciding that a presumption of payment arose. Accordingly, we reverse.
Reversed.
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Pollak v. Meyer, 263 So. 2d 237 (Fla. 3d DCA 1972)…s case, in a jury trial in the civil court of record of Dade County. Upon an earlier trial of the cause a directed verdict was entered for the defendant. The judgment thereon was appealed, and this court reversed. See Pollak v. Meyer, Fla.App.1971, 242 So. 2d 796. In the opinion on that first appeal the nature of the case was revealed, and this court held the plaintiff had made a prima facie case. Following that reversal a new trial was held. Upon examination of the record we conclude, as we did previously,…