Butler & Co. v. McCall

Candler, J. The consideration of a contract is always open to inquiry in a suit for its enforcement. The answer of the defendants as amended, setting up that the note sued on was for the purchase-price of certain sawmill timber, that part of the land conveyed had no timber on it at all, that as to other portions a paramount outstanding title existed in other parties, and that the defendants had never been in possession thereof, was good as a plea of failure of consideration, and should not have been stricken on demurrer. Judgment reversed. All the Justices concur, except Simmons, C. J., absent.