I concur in the judgment; although, in my opinion, if the answer had set up the defenses of payment and want of consideration, the remark of the judge when counsel for plaintiff was making his opening statement should not have been taken as precluding any evidence as to those defenses. The remark of the court in reply to counsel for plaintiff evidently meant merely that the matter set up in the cross-complaint could not be considered. Nothing further was called to the attention of the court. Counsel for defendant evidently considered the remark of the court in the sense above stated, for he contends in his brief that "the evidence shows want of consideration and non-execution." *Page 435