On Petition for Rehearing Piled Jan. 2, 1915.
Pee Cueiam.Appellant’s counsel has petitioned for a rehearing upon two points. Pirst, he asserts that the statement in.the opinion that there is no allegation or proof that plaintiff did not acquire title to this paper as a holder in due course is erroneous; and, second, that inasmuch as the plaintiff had the burden of proving the transfer and *75its ownership of the note, “it was incumbent on it to meet that issue and sustain that burden of proof by some evidence.”
As to counsel’s first contention, it is apparent that he misconstrues our holding. All we intended to hold, and we think it clear that all we in fact held, was that it was incumbent on defendant to allege and prove that plaintiff is not a holder in due course, and that he failed so to do. The Code, § 6944, Comp. Laws 1913, places such burden on him. By such holding, however, we should not be understood as saying that the denial in the answer does not raise an issue as to plaintiff’s ownership of the note through a sale and indorsement thereof by the payee to him. Plaintiff no doubt has the burden of proving such facts, and this is all that was held in Nunnemacker v. Johnson, 38 Minn. 390, 38 N. W. 351, and Tullis v. Shannon, 3 Wash. 716, 29 Pac. 449, cited by counsel. In the first case it was held that “the transfer of the note and plaintiff’s ownership are put in issue.” In the latter case it was said: “The complaint alleged the assignment and delivery of the note by the payee to the plaintiffs, and that the plaintiffs were the owners and holders thereof. The answer denied this. The action being by the assignees, it was necessary for them to allege their ownership in some way, and prove it if denied.”
It does not follow, however, that’plaintiff had to go further than this, and prove that he was a holder in due course, or that such issue was raised by the denials in the answer. See Kerr v. Anderson, 16 N. D. 36, 111 N. W. 614.
The other Minnesota case cited by counsel, Hodgson v. Mather, 92 Minn. 299, 100 N. W. 87, it is true, holds that a denial of the allegation in the complaint that the owner of the note “duly assigned, transferred, indorsed, and delivered it to the plaintiff, who now owns the same,” put in issue such allegations, and also the fact that the note was transferred before maturity, which latter fact it was held was an inference implied by law therefrom, and that defendant was therefore entitled to prove that such note came into plaintiff’s possession after its maturity. But even conceding such decision to be sound,— regarding which we 'entertain grave doubts, — it assumes that defendant has the burden of proving the transfer of the note after its maturity.
If we should eliminate from the opinion the statement that there *76is no allegation that plaintiff did not acquire title to tbe note as a bolder in due course, tbe result must be tbe same, for there is no evidence that plaintiff acquired sucb note after its maturity. Counsel’s contention under tbe second ground for rebearing is, we tbink, based on tbe erroneous assumption that because tbe witness Partin’s testimony was somewhat impeached and discredited as to tbe exact date of tbe transfer of tbe paper to plaintiff (which fact is immaterial, tbe only material fact being whether sucb transfer was prior or subsequent to tbe maturity of tbe note), bis entire testimony is likewise impeached, including that portion wherein be testified to tbe fact of tbe indorsement of sucb paper. We tbink tbe testimony as to tbe fact of sucb indorsement, which is undisputed, must be given effect. Had sucb witness testified, as suggested by counsel, that tbe indorsement and transfer took place after the maturity of tbe nóte, this would have been material; but tbe exact date on which it was transferred after maturity, if such was tbe fact, would not have been material to any issue in tbe case.
Petition denied.