This appeal is from an order opening a judgment which had been confessed on a note for $3,500, dated August 14, 1931, maturing one day after date. The proposed defense is that the note was paid by being included in subsequent obligations. Early in 1932, plaintiff's decedent acquired additional notes of defendant amounting to $49,500 and took a bond and mortgage *Page 452
for the sum of both debts, $53,000, with interest at 4%. In September, 1934, the debt was reduced to $52,200 and a new bond and mortgage for that amount payable at the end of 10 years, without interest, were executed and delivered and the $53,000 bond and mortgage were returned to the makers. Other evidence would also support defendants' contention that the new obligation was substituted for the two prior obligations and that the return of the $53,000 mortgage, in the circumstances, was sufficient to go to a jury on the question of payment: seeCitizens Bank of Wind Gap v. Lipschitz,
Judgment affirmed.