The evidence shows the transaction was to be a cash one, and the burden was on plaintiff to show nonpayment. Pollak v. Winter, 173 Ala. 550, 55 So. 828; Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 308. So long as a contract remains executory, the plaintiff must declare specially. Jonas v. King, 81 Ala. 285, 1. So. 591; Jebeles Colias v. Pettee Co., 16 Ala. App. 338, 77 So. 932; Dickson v. Ala. M. S. Co., 17 Ala. App. 195, 84 So. 416; Southern R. Co. v. Spragins, 131 Ala. 319, 30 So. 824, So long as the buyer can say without self-contradiction that the goods have not been taken in fulfillment of the contract of sale, he has not accepted them. Ex parte Bailey Gro. Co., 205 Ala. 79, 77 So. 373.

Bradley v. Bentley, 281 Ala. 28, 163 So. 351; Trinkle v. Ladoga Bldg. Loan Fund Savings Assn., 65 Ind. App. 415, 117 N.E. 542; Mobile O. R. Co. v. Nicholas, 98 Ala. 92, 12 So. 723. Party signing note with another who has since died is not barred by "Dead Man's Statute" from stating he has not received any proceeds of such note. Gamble v. Whitehead, 94 Ala. 335, 11 So. 293; Steiner v. Springer, 61 F. 253 (5th Cir. 1894); Scarbrough v. Blackman, 108 Ala. 656, 18 So. 735; Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 308; Blount v. Blount, 158 Ala. 243, 48 So. 585. A person whose pecuniary interest in the litigations has been extinguished not for the purpose of making himself a competent witness may testify to transactions with deceased. Code of Alabama 1940 (Recomp.

In the former case the court said: Authorities considered by the court, discussing exceptions to the general rule that payment is an affirmative defense to be pleaded and proved by the defendant included Potoker v. Klein, cited above; Brenton Bros. Leach v. Hill, 197 Iowa 125, 196 N.W. 947; Cochran v. Reich, 91 Hun. 440, 36 N.Y.S. 233; and Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 307. Even if applicable, they give way to the presumption discussed in the text. Appellant's brief contends, in its discussion of the issues (1) that the transaction was a continuing trust, (2) that it was a bailment, (3) that it rose out of Southward's breach of the written contract.

The burden of proving payment of the mortgages was upon the debtor. Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 307; Id., 210 Ala. 372, 98 So. 309; Newell Const. Co. v. Lacy, 229 Ala. 208, 155 So. 379; Pollak v. Winter, 166 Ala. 255, 51 So. 998, 139 Am.St.Rep. 33. Defense of payment is waived unless pleaded. 15 Ala.Dig., Payment, p. 754, 59; Newell Const. Co. v. Lacy, supra.

No person having a pecuniary interest in the result of a suit may testify against the party to whom his interest is opposed, as to any transaction with or statement by the deceased person whose estate is interested in the result of the suit. Code 1923, § 7721; Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 307; Earnest v. Fite, 211 Ala. 363, 100 So. 637. Contracts of an insane person are void. Code 1923, § 6824; Metropolitan L. Ins. Co. v. Bramlett, 224 Ala. 473, 130 So. 752. Where a person was declared mentally unsound by verdict of a jury and decree of court, the proof of adjudication of insanity cast upon the opposition the burden of establishing mental capacity subsequently. Houston v. Grigsby, 217 Ala. 506, 116 So. 686, 688; Pope v. Bolin, 224 Ala. 322, 140 So. 382. Shop book entries are not admissible in suit against personal representative of deceased person whose estate is interested. Dismukes v. Folson, 67 Ala. 386 ; Mobile Sav. Bank v. McDonnell, 87 Ala. 736, 6 So. 703.

PER CURIAM. Petition of Stanley Sullivan for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Stanley Sullivan v. S. F. Hobbs, 98 So. 307. Writ denied.

The right of recovery in this action, of course, presupposes due presentation of the claim. The questions here involved were decided by this court in Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 307, and Ex parte Sullivan, 210 Ala. 372, 98 So. 309. In the Sullivan Case, supra, Pollak v. Winter, 166 Ala. 255, 51 So. 998, 52 So. 829, 53 So. 339, 139 Am. St. Rep. 33; Id., 173 Ala. 559, 55 So. 828, and cases of similar import were considered, and after consideration the foregoing rule was announced.