
    MINNEAPOLIS THRESHING MACHINE COMPANY, Appellant, v. COLTON, Respondent.
    (164 N. W. 971.)
    (File No. 4174.
    Opinion filed November 12, 1917.
    Rehearing denied December 31, 1917.)
    Negotiable Instruments — Suit on Notes — Answer Admitting Execution, Alleging Payment — Demurrer' to Allegations — Allegations Superfluous — But One Defense.
    In a suit on promissory notes, the answer admitting eixec-ution thereof and alleging payment, held, that a demurrer to that part of the answer containing said allegation, as not constituting a defense, was properly overruled; -said allegations not being pleaded as a separate defense or counterclaim; that but one defense — that of payment — was pleaded.
    Appeal from Circuit Court, Codington County. Hon. Carl G. Sherwood, Judge.
    Action by Minneapolis Threshing 'Machine Company, against Chas. M. -Colton, to recover on promissory notes. Appeal from order of trial court overruling demurrer to answer.
    Order affirmed.
    
      Kirby, Kirby & Kirby, for Appellant.
    
      Caldwell & Caldwell, for Respondent.
    Respondent cited: 31 Cyc. 225; Nollman et al.-v. Evanson, 5 N. D. 344, 65 N. W. 686; Brower v. Nellis, 33 N. E. 672.
   WHITING, J.

Action to recover on promissory notes. Answer admitted execution of notes and alleged their payment. Such answer also set forth the facts which defendant claims amount to the alleged payment of these notes. Admitting that the allegation of payment rendered the answer good, the plaintiff interposed a demurrer to these allegations of facts from which defendant would 'have such payment found. Plaintiff contends these allegations are insufficient to constitute a defense. The trial court overruled the demurrer, and plaintiff appeals.

The action of the trial court -should be sustained. The allegations attached were not pleaded as a separate defense or counter-claim, but were allegations1 of probative facts, superfluous perhaps, -which allegations defendant saw fit to plead in connection with, and explanatory of, the allegation of payment, the material fact. But one defense was in fact pleaded, that of payment.

The order of the trial court is sustained.  