Colt v. Kelly

^* Corpus Juris-Cyc. References: Bills and Notes, 8 C.J., p. 444, n. 16; p. 445, n. 17. Sales, 35 Cyc., p. 433, n. 42. Renewal of note for price as waiver of breach of warranty, see 24 R.C.L., p. 239; 5 R.C.L. Supp., 1277. The appellant, J.B. Colt Company, sued the Kellys on a promissory note for the sum of two hundred fifty-seven dollars and seventy cents, dated March 19, 1923, and due November 1, 1923, which note was a renewal note. The original contract was dated October 16, 1920, by which the plaintiff was to deliver a carbide generator lighting plant to the Kellys. The original note was dated in December, 1920, two years and three months before the execution of the renewal note.

To the declaration filed by the plaintiff, the defendants pleaded a failure of the warranties made by the plaintiff to the defendants in the sale of the light plant and generator, in that the apparatus was of very inferior material, not durable, and went to pieces with rust; next, that the apparatus was not automatic in action; and, next, that same was not of good material and workmanship; and the plaintiff replied to this plea of recoupment, and in the plea there is this language:

"That the renewal note is the note sued on; and defendants knew at the time of the renewal of the matters and things complained of."

We deem it unnecessary to set forth at length, or mention, other matters found in the record in this case.

The plaintiff asked for a peremptory instruction, which was refused by the court, and this is the only assignment of error we shall consider.

The plaintiff's testimony is uncontradicted that he had ceased to use this plant before two years had expired; that he knew of most of the defects complained of in his plea in less than a year; and it is clear to us that he signed the renewal note at a time when he knew of the alleged defects and when he had ceased to use it for a plant according to the undisputed evidence in this record.

The signing of the renewal note with knowledge of the breaches of the warranties is an estoppel of the defendants from setting up said breaches. Such signing of a renewal note is a waiver of the defense, and may not be set up to defeat the recovery of the renewal note unless there was some new consideration offered or fraud perpetrated which induced the signing of a renewal note. The result, as above set forth, seems to be amply sustained without regard to whether the note remained in the hands of the original holder or purchaser for value. Padgett v. Lewis, 45 So. 29, 54 Fla. 177; Roess Lumber Co. v. Bank, 67 So. 188,68 Fla. 324, L.R.A. 1918E, 297, Ann. Cas. 1916B, 327; and Franklin Phosphate Co. v.International Harvester Co., 57 So. 206, 62 Fla. 185, Ann. Cas. 1913C, 1247; American Car Co. v. Railway Co., 28 S.E. 40,100 Ga. 254; 8 C.J. par. 658, notes 16 and 17.

The court below having submitted the matter to the jury, and the jury having found for the defendants, we are of the opinion that there was no disputed fact to be submitted to the jury and that the law is against the defendants.

The judgment of the court below will be reversed, and judgment here will be entered for the amount of the note with interest at eight per cent. per annum and with ten per cent. attorney's fees added thereto.

Reversed, and judgment here for appellant.

Reversed.