Leiter

On February 14, 1911, the defendant in error, Thomas S. Poindexter, together with one Henry Stroh, made, *611 executed, and delivered to Samuel K. Watson, acting as agent for and on behalf of the A. C. Ruby Company, the following written instrument:

The plaintiffs in error were plaintiffs in the court below in an action commenced on December 16, 1911, on the foregoing instrument, alleging it to be a promissory note. It is further alleged that prior to the 14th day of August, 1911, A. C. Ruby Company mentioned in said instrument as payee, for a valuable consideration sold, assigned, and transferred the said note by indorsement to J. M. Reiter and Floyd J. Campbell, the plaintiffs in said action, and that the said plaintiffs were then the legal owners and holders of said note; that said note had not been paid, nor any part thereof, except the sum of $400 paid by the defendant, to apply one-third on each of the installments of principal provided for in said note. The defendant in his answer set up three defenses to the cause of action stated in the complaint:

[1] 1. A denial that the written instrument in suit was a negotiable promissory note. In this defense the issue was…