Badover

This is an appeal by defendant from a judgment in favor of plaintiff for $7,253.88 upon a promissory note found to have been given “for value” by defendant’s testate, Benjamin L. Liveson, to plaintiff. The action was commenced against said Liveson about two months before his death, which occurred March 4, 1917, prior to the trial. The trial court found that the note was lost after the commencement of the action and prior to the filing of the supplemental complaint filed after the death of Liveson, and has not since been found, notwithstanding diligent search therefor.

1. It is earnestly urged that the evidence is insufficient to sustain the findings of the trial court with relation to the giving of the note. In the light of the record it cannot reasonably be contended that there was not substantial testimony in favor of plaintiff on every disputed point. The contention of insufficiency is based upon matters going to the question of the credibility of the witnesses, and upon the theory that the proof of a claim against the estate of a deceased person must be clear and convincing.

It is, of course, true that the burden is on the claimant to establish his claim by a preponderance…