In an action on promissory notes brought by the payees against the maker thereof, there was final judment for the plaintiff on demurrer to jileas, and the defendant took writ of error. Three of the notes on their face stated that they were “to be carried as per contract of this date.” Among the pleas held bad on demurrer was one averring that the sole consideration for the notes ivas the purchase price of timber sold under contract by plaintiffs to defendant, the plaintiffs retaining title to the timber till all the notes should be paid off and discharged, and that the plaintiffs did treat the timber as their own and did retake the same, and did after the maturity of the notes enter upon the land and cut, remove and dispose of said timber, thus being, estopped by their election. Other pleas averred failure of consideration and partial failure of consideration. These pleas are not accurately drawn, but a defense may be proven under them.
The demurrer thereto should have been overruled. The verdict in. ancillary attachment proceedings merely found “for the plaintiffs in attachment.”