
    W. S. Click, Plaintiff in Error, vs. John R. Dowd and Allan C. Dowd, Partners, trading and doing business under the firm name of Moore Haven Overland Company, Defendant in Error.
    
    
      135 So. 840.
    
    Division B.
    Opinion filed July 4, 1931.
    Petition for rehearing denied July 15, 1931.
    
      Fred S. Mellor, for Plaintiff in Error;
    
      B. A. Bales, for Defendants in Error.
   Terrell, J.

— Defendants in error brought an action at law against plaintiff in error to recover on a promissory note. There was a plea of payment and at the conclusion of all the testimony an instructed verdict was entered for the plaintiff. Defendant took writ of error. The instructed verdict is the basis for the sole assignment of error here.

The rule is elementary that when the defendant in an action on a promissory note tenders a plea of payment the burden is on him to prove his plea by a preponderance of the evidence. International Harvester Co. vs. Smith, 51 Fla. 220, 40 So. 840, 3 R. C. L. 1285. The evidence in this cause has been examined and it fails utterly to meet the 'requirements of this rule.

The judgment below is accordingly affirmed.

Affirmed.

Whitfield, P.J., and Davis, J., concur.

Buford, C. J., and Ellis and Brown, J.J., concur in the opinion and judgment.  