In this cause the defense is payment. This being an affirmative defense, the defendant-appellant was bound to establish it by what is known as a preponderance of evidence.Defendant attempts to establish this by showing that plaintiff, gave the claim in suit to the attorney Davidson in New York for collection, who sent it to the lawyer .Horner in Denver, Col., for' collection, and who settled the claim by the payment of some cash and a note for $500 of defendant’s brothers, A. L. Roeder and' D. R. Roeder. The attorney Davidson testified, “ that he neven authorized Horner, the lawyer at Denver, Col., to settle the claim in any other way than in cash and that he received two small *819checks and the five-hundred-dollar note signed by A. L. and D. E. Eoeder to the order of II. & E. Laracy.”
That he turned the money and the above note over to E. & E. Laracy, but he failed to testify how much the checks were, or how much money he turned over. The note being given for a, precedent debt, the presumption is that it was not taken in payment, and the burden of proof is on the defendant that it was talcen in that way. Hall v. Stevens, 116 N. Y. 206.
This defendant failed to do and failed to adduce sufficient evidence in regard to the defense of payment to warrant the court to submit it to the jury.
It is immaterial how much money the two checks heretofore spoken of represented, for no question is made here that the money represented to them has not been allowed and credited to the defendant. It is, however, undisputed that, besides the two small checks as above, the five-hundred-dollar note was given at the same time in settlement, and plaintiff only sues here for the sum of $400.
We think substantial justice has been done by the verdict rendered. The note was not put in evidence, nor was there any” secondary evidence of its contents offered. It appears to be made to plaintiff’s order, and was not used by plaintiff and is still in' plaintiff’s hands. It is past due, and no innocent person or party seems to have it. Judgment is affirmed, with costs.
Scotchman, J., concurs.
Judgment affirmed, with costs.