Kaliski Music Co. v. Wall

STATEMENT OF THE CASE REYNOLDS, J. This is a suit on twenty-eight promissory notes signed by defendant. Defendant admits signing the notes ibut alleges that plaintiff agreed not to file suit on them. Defendant denied that he made such an agreement. On these issues the case was tried and there was judgment for plaintiff and defendant appealed. OPINION The question presented for decision is one of fact as to whether or not plaintiff agreed not to file suit on the notes. Defendant swears positively that plaintiff agreed not to file suit on the notes, and plaintiff swears positively that he made no such agreement. The burden of proof rested on the plaintiff to establish his special defense; and as his testimony is offset by that of the plaintiff he has failed to discharge the burden resting on him. The trial judge who heard the witnesses testify and observed their demeanor on the witness stand gave effect to the testimony of the plaintiff. We are convinced that his judgment is correct. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.