I dissent. The defendant, by failure to allege affirmatively that the plaintiff is not incorporated, raises no issue on this subject. (Code Civ. Proe. § 1776.) The pleadings did raise the issue of the assignment 'from the McPherson Material Company to the plaintiff, but the conduct of the parties on the trial of the case was such as to constitute a waiver by the defendant of plaintiff’s proof of the assignment. From the stenographer’s minutes this statement *424appears, “ defense' -being payment, the defendant takes the affirmative.” No objection seems to have been raised to this method of procedure by the defendant; he voluntarily took the affirmative without compelling or imposing upon the plaintiff the burden of proving the assignment of the claim to it, nor is that question elsewhere raised in the record.
■ I think that from all the evidence the trial justice was justified in holding that the defense of payment had not been successfully sustained, and that there was evidence to support his finding.
The judgment should be affirmed.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.