Steen

Appeal from an order granting a new trial.

All presumptions are in favor of the correctness of the order, and the appellants in error must show, clearly and affirmatively, by the record of the ease, that the order is erroneous: Clark v. Sawyer, 48 Cal. 133 ; Moore v. Massini, 43 Cal. 389 ; People v. Best, 39 Cal. 690 .

It is contended that the order is erroneous, because the court found: ‘ ‘ That the promissory note, which constitutes the cause of action, was made and delivered by the defendant in consideration of the adjustment, at the amount in said note set forth, of an open and unliquidated account, then existing between the Glasgow Iron and Metal Importing Company, for whom the payee named in said note was then and there the agent, and the satisfaction of such account by the credit against the same of the said note”; and, being found on that consideration, it was not permissible to prove by parol evidence the defense set up in the answer.

*176 But the record discloses the fact that the finding upon the question of consideration was not sustained by the evidence. There is no conflict in the evidence.

As it appears from the record, the ease arises out of an action upon a…