(After stating the facts.) 1. The case turns upon the proper construction to be placed upon the entry dated May 1, 1900, which is set forth in the statement of facts. The plaintiff-contends, that, properly construed, this was an agreement to pay-$900 for an extension of time to pay the purchase-price of the timber; that it was a complete contract in itself, the consideration-for the payment being the extension of the time; and that the subsequent rescission of the contract did not affect the defendant’s liability upon the note given in pursuance of the terms of this entry. The defendant contends, that the effect of the entry was merely to increase the purchase-price of the timber $900; that it became a part of the contract of purchase; and that when this contract was rescinded, all liability on it ceased. If time was of the essence of the original contract, the failure to pay the purchase-price at the time stipulated would have caused the contract to cease and be at an end. If this was true, at the date of the entry there • was no contract existing between the parties, no liability on the part of the defendant, nothing to extend; and the entry could not be construed in any other light than a new contract of purchase as of that date, with the purchase-price increased $900. If this was the contract between the parties, and was subsequently re*648scinded, as the evidence establishes, of course every part of it failed, and there would be no more liability upon the $900 note than there would be for the balance of the purchase-money. On the other hand, if time was not of the essence of the original contract, and there was still a valid and subsisting contract between the parties, and the plaintiff had the right to enforce the payment at once, he could, for a consideration, agree to extend the time of payment, and the amount agreed upon for the extension could be collected independently of the purchase-price, if such was the intention of the parties and the transaction did not violate the laws against usury. The defendant could also secure an .extension by agreeing to increase the purchase-price to be paid for the timber. If this was .done, the promise to pay an additional amount became part of the consideration of the contract of purchase, and when that contract failed the liability on this promise would cease. The entry recites that in consideration of $900 Alison agrees to extend the time of payment of the balance of the purchase-price 60 days. If this were all that the entry contained, the contention of the plaintiff would seem to be well founded. But the entry says "the $900 paid shall apply on amount due on the within contract,” and this is followed by other language according with th§ contention that the note is to be treated as part of the payment of the purchase-price, the entry stating, "The above amount being a note shall only apply if paid.” The language of the instrument is not .altogether clear, but nothing appears therein to indicate that it was not the intention of the parties that this $900 should be treated as a part of the purchase-price of the timber. When it is -so construed, the.promise to pay the $900 became a part of the contract of purchase, and the rescission of this contract ended all liability on the note.
2.There was no error in refusing to allow the plaintiff to open .and conclude the argument. The defendant, by his plea, assumed the burden of proof, and the plaintiff, by a mere failure to introduce evidence, did not relieve in any way the burden thus assumed. Turner v. Elliott, ante, 338.
Judgment affirmed,.
All the Justices concur, except Fish, C. J., absent.
