Holt v. Maddox

207 N.C. 147

Opinion

ScheNCK, J.

This case is governed by Sales Company v. Meyer, 206 N. C., 198, where the following from 8 O. J., 444, was quoted with approval: “One who gives a note in renewal of another note, with knowledge at the time of a partial failure of consideration for the original note, or of false representations by the payee, waives such defense, and cannot set it up to defeat or reduce the recovery on the renewal note.” See, also, Barco v. Forbes, 194 N. C., 204, 139 S. E., 227, and Bank v. Howard, 188 N. C., 543, 125 S. E., 126.

Construing the evidence most favorably to the defendant and applying thereto the principle of law above enunciated, we think his Honor was warranted in charging the jury, in effect, that if they found the facts to be as shown by all the evidence they should answer the issues in favor of the plaintiffs.

Since the defendant’s own testimony was a waiver of such defense, we think his Honor was correct in excluding evidence tending to show damage by reason of breach of warranty. This case is distinguishable from the case of Manufacturing Co. v. Gray, 124 N. C., 322, relied upon by the appellant.

No error.