Treat Orchard Co. v. General Chemical Co.

Per Curiam. Suit was brought on a number of promissory-notes, and the makers sought to set off against the liability on the notes damages alleged to have resulted from the plaintiff’s breach of a contract in which it is contended plaintiff promised to furnish *308 defendants with certain insecticides for peach and apple orchards in 1937. The answer alleged that the plaintiff breached its contract in July, 1937. The notes sued on were dated September 1, 1937, and were given for insecticides furnished to the defendants under the contract. While the answer, alleged that the defendants did not know what damages they would suffer by reason of the plaintiff’s breach of the contract until 1938, it shows that defendants knew in July, 1937, of the breach of the contract. The execution by the defendants of the notes sued on, after they were fully aware of the breach, was a waiver of the breach which they can not now plead in defense to a. suit on the notes. It was not error for the court to sustain the general demurrer to the defendants’ plea and answer. Consequently the court properly directed a verdict for the plaintiff, and entered judgment accordingly, after the amount of an alleged overcharge had been written off by the plaintiff. Judgment affirmed. Stephens, P. J., and Felton, J., concur.