Bartholomew v. Emerson-Brantingham Implement Co.

The suit was by defendant in error, plaintiff below, on promissory notes. The answer denied'' non-payment, averred payment and denied all allegations not admitted. There was no replication; consequently the plea of payment stands admitted in the pleadings.

This court has wavered on the question but has finally determined that payment is an affirmative defense, even when it is negatived in the complaint and the answer con*245tains a general denial. Nitro Co. v. Kearns, 50 Colo. 1, 9, 114 Pac. 396; Harvey v. D. & R. G. R. Co., 44 Colo. 258, 262. 99 Pac. 31, 130 Am. St. 120; Florence O. & R. Co. v.…