#### WILLIAM BARCO & SON et al. v. W. F. FORBES.

(Filed 14 September, 1927.)

Bills and Notes — Fertilizer—Contracts—Renewal—Failure of Consideration — Waiver—Defenses.

Where the purchaser of fertilizer has given his note for the purchase price, and after the crops upon which it has been used have been gathered and the result of the use of the fertilizer seen, he may not give a renewal note for the amount due and thereafter resist recovery thereon, upon the ground that the fertilizer was worthless, and did not come up to contract, and therein there was a failure of consideration.

Civil actioN, before *Daniels, J.,t*at March Term, 1927, of Curri-tttok.

The plaintiffs brought a suit against the defendant upon a note in the sum of $227.25. The note was given for the purchase price of fertilizer purchased by the defendant from the plaintiffs. The note was dated 10 January, 1923, and it was admitted that this note was given in renewal of a former note dated 1 July, 1922. The defendant contended that the fertilizer was bought for use in producing a sweet potato crop in the year 1922, and that the fertilizer delivered was worthless and had no effect whatever upon the crop. The evidence disclosed that digging time for this crop is in July and early August, and that the defendant attempted to dig the potatoes, and dug some of them, and shipped them and sold them, but the balance of the potatoes were left in the field.

*205Tbe following issue was submitted to tbe jury: Did tbe plaintiffs fail to deliver to tbe defendant fertilizer contracted to be sold? Tbe jury answered tbe issue, “Yes.”

Tbe trial judge refused to sign a judgment in favor of tbe defendant upon tbe verdict, and tbe plaintiffs, having moved for judgment upon tbe admissions made of record, and tbe court being of tbe opinion upon said admissions, tbat tbe plaintiffs were entitled to judgment for tbe amount of tbe note, entered judgment tbat tbe plaintiffs recover from tbe defendant tbe amount of tbe note, witb interest and cost.

From tbis judgment, so entered, tbe defendant appealed.

*Ekringhaus & Hall for plaintiffs.*

*Aydlett & Simpson for defendant.*

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.