Simpson

It is alleged in the complaint that, on January 1, 1907, defendant made, executed, and delivered to plaintiff a promissory note (a copy of which is set forth) for the sum of $5,605.32, payable twelve months after date, with interest at five and one-half per cent; that, on the fifth day of February, 1908, defendant paid upon said note tbe sum of $2,802.66'and that no other payments have been made.

The answer is that said payment of $2,802.66 was “in full payment of the promissory note; . . . and that the said plaintiff accepted said sum from the defendant in full satisfaction and discharge of the said promissory note, . . . and that thereupon the said plaintiff delivered to the defendant the said promissory note, and that the defendant is now the owner and holder of the same.”

The cause was tried before the court, without a jury, and the findings were: That the note in question was executed and' the payment of $2,802.66 made thereon as set forth in the complaint; “that said payment was not in full payment of the said promissory note and plaintiff did not accept nor agree to accept said sum in full satisfaction or discharge of the said note; that the defendant is in the possession…