
    8868.
    Chastain v. Barwick.
    Decided August 3, 1917.
    Complaint; from city court of Cairo—Judge Willie. January 20, 1917.
    Lib Barwick sued Chastain on a .promissory note, payable to the plaintiff, for $159 and interest. The defendant, in his answer, admitted the execution of the note, alleged that before and on the date of signing the note the plaintiff was owing him $652.50, for money and property which the plaintiff had received from him, and further pleaded as follows: “4. Defendant further says that plaintiff paid defendant said sum on the date, and said note was given for the reasons and purposes hereinafter stated. 5. That said plaintiff had sold to a negro named Tom Beaman a horse for the sum of $100, and that said horse was unpaid for, and that L. L. Barwick, brother of plaintiff, had bought said horse and had become paymaster for same. 6.. Plaintiff, Lib Barwick, stated to defendant that L. L. Barwick owed him, Lib Barwick, the $100 for the horse which he transferred to defendant, and that L. L. Barwick would pay defendant upon demand. 7. Defendant further says that the plaintiff had in his possession corn, hay, and cottonseed of the probable value of $60, belonging to defendant, which plaintiff was to check up and enter as credit on this note when amount was ascertained, .which was left to plaintiff to do, as lie claimed to have record of it at home. 8. Defendant says that when he called on L. L. Barwick fo,r the $100 which he was to pay-as a payment upon said note, the said L. L. Barwick denied owing him, L. L. Barwick [ ?], that sum or any other sum, and said that Lib Barwick was owing.him, L. L. Barwick, and said that there was a settlement to be had between them, Lib Barwick and L. L- Bar-wick, and for that reason positively refused to pay said sum. 9. Defendant further says that had said sum of $100 beenpaid.by L. L. Barwick as stated by Lib Barwick that he would do^'and the said checking of the property herein named and credit entered, th,at' said note would have been fully satisfied, and defendant, says for the reasons herein stated that said note is and should be satisfied. Wherefore defendant prays he be given credit for the account of $100 and for the corn, hay, and cottonseed of value of $60 upon said note, and that he be discharged with costs.”'
   Bboyles, P. J.

1. In an action upon a promissory note, between the original parties to the contract, the defendant may plead a partial failure of the consideration upon which the contract was founded. Civil Code (1910), § 5675.

2. Applying this principle of law to the facts of the case at bar, the court erred in. striking, upon an oral motion, paragraphs 4, 5, 6, 8, and 9 of the defendant’s plea.

3. The error in striking portions of the answer rendered nugatory the further proceedings in the case.

Judgment reversed.

Jerilcins and Bloodmorth, JJ., concur.

'Ledford & Christopher, for plaintiff in error.

•Q. Smith, contra.  