
    Lathrop & Company vs. Hickson.
    1. The suit being on an ordinary note, the consideration of which was guano, with no waiver of any right to plead failure of consideration or worthlessness of the guano, such a plea was not prevented or barred by the fact that the guano was to be, and was in fact, fish, guano.
    2. The verdict is supported by the evidence.
    Contracts. Estoppel. Debtor and Creditor. Before-Judge Simmons. Houston Superior Court. April Term,, 1881.
    Reported in the decision.
    B. M. Davis ; Warren & Grice, for plaintiffs in error.
    No appearance for defendant.
   Jackson, Chief Justice.

This was a suit on a guano note, and the jury found for the defendant. There are but two grounds in the motion for a new trial, and the only errors urged here for the denial of that motion are, first, that the court erred in refusing to charge the jury that if the note was given for fish guano, they should find for the plaintiff. though the guano were worthless. O.i its face, it was given for guano, but the defendant testified that it was to be fish guano, and upon this testimony, or admission, by the defendant, the request was based. The note is a plain one, with no iron-bound stipulations in regard to not making any defense to it, and the admission that the guano was to be fish guano, did not alter it so as to deprive the defendant of the defense that it was not fitted for the use intended, but was worthless. There was, therefore, no error in the refusal to charge as requested.

The second ground is, that the verdict was contrary to the evidence. The evidence is conflicting; but there is enough to support the finding that it was worthless, and therefore not fit reasonably for the use for which it was purchased. The jury and judge presiding having both found that issue for defendant, the one tribunal on the trial, and the other on a motion for a new trial, the uninterrupted line of the decisions of this court is not to interfere.

Judgment affirmed.  