Appeal from Clay County Court.

Heard before Hon. W. J. Pearce.

Action by W. O. Dial against C. T. McKay. From a judgment in favor of defendant, plaintiff appeals.

This Avas an action on a promissory note, and the complaint is in Code form. The folloAving pleas Avere filed by the defendant: • Pleas 1 and 2 Avere the general issue. (3) “That the instrument sued on Avas without consideration Avhen made.” (6) “That the consideration of the instrument sued on Avas this: That plaintiff had orally contracted with a Mrs. Hudson for the lease or rent of her farm, Avhich she purchased of defendant, for the year 1905, and offered and did bargain with defendant to subrent or lease .said lands to defendant for said year, on the condition that Mrs. Hudson did not interfeie thereAvitli, at a price of $75 more than plaintiff Avas to pay Mrs. Hudson for the rent of the place, and that on a subsequent day plaintiff came to defendant and represented to him that lie had seen Mrs. Hudson about said rent or lease contract between plaintiff and defendant, and that their said contract Avas all right Avith her, and suggested and persuaded defendant to execute his note to plaintiff for $75, and stated to defendant that he could close up the trade and execute his note to Mrs. Hudson for price plaintiff was to pay her for the rent or lease of the place; and defendant avers that, believing and relying on said representation made to him by plaintiff, he executed the notes sued on to plaintiff; and defendant avers that at the time he executed said notes to plaintiff it Avas the understanding, and was agreed to by plaintiff, that if Mrs. Hudson refused to agree to said contract between them and to let the defendant have the place under said rental agreement, defendant’s said note to plaintiff was not to be paid, but was to be surrendered to him by plaintiff; and defendant avers that Mrs. Hudson failed and positively refused to carry out said contract and let him have the place for the year 1905 under said contract; and defendant avers that he immediately notified plaintiff of such refusal; and he further avers that plaintiff failed or refused to secure said place or land for him for the year 1905 under' said contract and agreement. Hence he says he ought not to pay the note sued on.” Pleas 7 and 8 are substantially the same as 6, as is plea 10, with the exception that plea 10 sets out in full the contract made between the plaintiff and Mrs. Hudson and the contract made between plaintiff and defendant, with the averments that Mrs. Hudson failed to carry out her contract with plaintiff, and plaintiff was unable to carry out the contract made with defendant in consideration of which the note was made.

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