Barco v. . Forbes

139 S.E. 227, 194 N.C. 204, 1927 N.C. LEXIS 45

Opinion

BeogdbN, J.

Tbe question is tbis: If a note is given for tbe purchase price of fertilizer, and there is a total or partial failure of tbe consideration, and tbe maker of tbe original note executes a renewal note, after knowledge of tbe failure of tbe consideration, can such maker resist tbe payment of tbe renewal note?

"When tbe fertilizer was purchased in 1922, tbe defendant gave a note for tbe purchase price. Tbe evidence discloses tbat tbe time for harvesting tbe crop was in July or August, 1922, and tbat tbe potatoes were dug at tbat time. It is obvious, therefore, tbat in August, 1922, tbe defendant bad full knowledge of tbe fact ■ tbat tbe fertilizer was worthless and tbat there was a total failure of tbe consideration for tbe note executed by him and delivered to tbe plaintiffs. However, notwithstanding, on 23 January, 1923, be executed and delivered to tbe plaintiffs tbe renewal note, upon which tbe suit was brought.

In Bank v. Howard, 188 N. C., p. 550, Connor, J., declared tbe law as follows: “One who gives a note in renewal of another note, with knowledge at tbe time of a partial failure of tbe consideration for tbe original note, or of false representations by tbe payee, waives such defense and cannot set it up to defeat or to reduce tbe recovery on tbe renewal note.”

Tbe defendant relies upon tbe case of Grace v. Strickland, 188 N. C., 369. In tbat case it appears tbat “tbe defendant did not discover tbe fraud until after be bad executed tbe renewal note,- and did not treat witb tbe plaintiff after such discovery.”

These principles of law support and justify tbe judgment entered in tbe cause.

Affirmed.