
    (November 26, 1951.)
    Bolmer Brothers, Inc., Appellant, v. Bolmer Construction Company, Inc., Respondent, et al., Defendants.
   It is not alleged in the fifth defense that the note and mortgage are invalid or unenforeible, except by reason of a lack of surplus on the part of the respondent. A lack of surplus is no defense to an otherwise valid note and mortgage. It is not alleged in the counterclaim that any part of the moneys there referred to were paid to the appellant, nor does the counterclaim allege any facts upon which liability may be imposed upon appellant for payments made to two individuals who are not parties to the action. Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.  