Peterson v. Thompson

Mr. Justice McBride delivered the opinion of the court. 1,2. The indorsement of defendants was without qualification, and, therefore, in the regular course of' [163] business, they are liable unless the note had been previously paid or otherwise satisfied: Section 5899, L. O. L. Payment being an affirmative defense, it was incumbent upon the defendants to prove such defense by the preponderance of the evidence: Willis v. Holmes, 28 Or. 265 (42 Pac. 989). "While there is some respectable evidence tending to show that the purchase of the property was made for plaintiff’s benefit and with the understanding that the mortgages upon the property were to be extinguished thereby, we are of the opinion that the weight of testimony is to the effect that the property was bought by Emma B. Thompson with her own money and for her own benefit; and, this being the case, it follows that defendants’ affirmative defense is not established, and the plaintiff is entitled to recover. 3. Error is assigned by reason of the ruling of the court excluding certain testimony offered by defendants, but, as no offer was made to have the testimony taken and incorporated in the record subject to the objection of defendants, under the rule announced in Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135), they are precluded from urging the objection on appeal. The decree is affirmed. Affirmed. Behearing Denied. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.