On Petition Fob, Rehearing.
[Decided February 8, 1908.]
Per Curiam.Inasmuch as the original indebtedness was admitted, the burden of proof rested upon the answering defendant to establish the allegations of her affirmative de*192fense. At the close of her testimony the court ruled that the agreement set forth in the answer was without consideration, and granted judgment in favor of the plaintiff for the full amount claimed. In the original opinion filed in this case, we held that the agreement set forth in the answer was founded upon an adequate consideration, and reversed the judgment, with directions to enter judgment in favor of the defendant. The plaintiff did not waive its right to contest the affirmative matter set forth in the answer by moving-for judgment at the close of the defendant’s testimony, any more than a defendant waives his right to contest the plaintiff’s case by moving for a nonsuit. For this reason a new trial should have been awarded instead of directing judgment for the defendant. To this extent the original opinion is modified, but in all other respects the petition for rehearing is denied.