Dunlap

This is an appeal from the judgment, and is taken by what is commonly called the “new method.”

The plaintiff rested its ease upon the pleadings. The promissory note, upon which the action was founded, was not offered in evidence; neither was any evidence of its nonpayment given. The execution of the note was not denied in the answer of the defendants; consequently no evidence of its due execution was necessary. Nor was it necessary to introduce the note in evidence to prove its nonpayment. The allegation of nonpayment is a negative allegation, which plaintiff was not required to prove.- (Melons v. Ruffino, 129 Cal. 514 , [ 79 Am. St. Rep. 127 , 62 Pac. 93 ].) There the court held that the allegation of nonpayment of a debt sued upon, though necessary to make the complaint perfect, need not be proved, but that the burden of proof of payment is upon the defendant, and that where the debt sued upon is proved within the statute of limitations, in the absence of proof of payment a finding of the nonpayment alleged is sufficiently sustained.

Defendants next contend that the evidence does not sustain the finding of the court that there was a consideration for the giving of the note.…