11650.

#### STAMPS *v.*DAWSON BROTHERS MANUFACTURING CO.

1. Where goods sold and delivered under a written contract are of the character described in the contract, the purchaser cannot, after having inspected the goods and given a note in payment therefor and in discharge of his obligation under the contract as expressly stipulated in the note, and for no other consideration, defend against a suit on the note upon the ground that the goods were bought under an oral agreement as to quality, at variance with the written contract, which oral agreement was violated by delivery of goods of a different quality from that orally contracted for.

2. While it is true that, after goods have been contracted for and delivered to the purchaser and he has inspectéd them, there may be a new agreement by the terms of which the seller is to make good any breach of warranty or repair any defect in the goods sold, as a consideration for the execution of a promissory note for the purchase-money by the purchaser, yet where there is no such consideration and a note is given for the purchase-money, expressly stipulating that it is given in compliance with the purchaser’s obligation under the original contract, it is no defense to the note that the purchaser was deceive 1 and fraudulently induced to execute it, by a fraudulent representation to him by the seller that the goods which were of the description mentioned in the original written contract could by a simple process be easily altered and converted into goods of the description mentioned m the alleged oral agreement.

3. The evidence tending to establish such defense having been properly ruled out, aijd a verdict for the plaintiff having been properly directed, it was not error to overrule the defendant’s motion for a new trial.

Decided February 26, 1921.

Complaint; from city court of Floyd county — Judge Nunnally. May 22, 1920.

Application for certiorari was denied by the Supreme Court.

*Willingham, & Covington, L. A.*Dean, for plaintiff in error.

*M. B. Bubanhs, Barry Wright, T. W. Lipscomb,*contra.

Stephens, J.

Dawson Brothers Manufacturing Company sued O. L. Stamps on a promissory note for $700. The defendant pleaded failure of consideration. The evidence showed that on or about June 7, 1918, the plaintiff entered into a written con*350tract with the defendant to sell and ship to him 50 barrels of unsweetened apple juice in good second-hand barrels. About 30 days after the goods had been received by the defendant an agent of the plaintiff called on him for a settlement, and he complained to the agent that the apple juice was not sweetened, and was for that reason not suitable for the purposes intended and was not salable. They then examined the barrels and their contents, the plaintiff’s agent gave instructions to the defendant as to how to convert the contents of the barrels into a sweet and salable article, and the defendant then executed the note sued on, writing across its face the following words and figures: “ In payment as per invoice 6/10/18.” The invoice described the goods sold as “ vinegar stock.” The trial court directed a verdict for the plaintiff, the defendant’s motion for a new trial was overruled,. and the movant excepted. The questions raised by the motion are sufficiently indicated by the headnotes.

*Judgment affirmed.*

*JenMn-s, P. J., and Hill, J., concur.*