The G. M. Bacon Pecan Company brought suit on an account against J. W. Gillespie, for $1,805.60, besides interest, for pecan trees alleged to have been furnished to Gillespie in *3531912. Gillespie pleaded that the trees were bought by him for a corporation of which he was president, and that the corporation was liable, and not himself. It was admitted on the trial that the number of trees stated in the account attached to the petition, at the, price named therein, were supplied as alleged, and the only question originally at issue in the case was whether Gillespie was liable individually, or whether his corporation, the Albany Paper Shell Pecan Company, was the party liable. On the introduction of evidence as to orders for the trees by J. W. Gillespie individually, and acceptance by the G. M. Bacon Pecan Company, the court held that the contract as shown by the letters and replies constituted, as a matter of law, a contract with J. W. Gillespie individually. Thereupon Gillespie offered an amendment seeking to set off damages because' of alleged breach of contract in connection with the trees furnished Gillespie during the winter of 1910-11, one year prior to the transaction which was the basis of suit. The contract, as appears from the record, was in writing, its terms being set forth in correspondence between the parties; and there was no express warranty therein. The first amendment offered' (the refusal to allow which is assigned as error) was based upon the theory of engrafting an express warranty by parol upon the written contract which was then in evidence.

■ The defendant subsequently, by sworn amendment, which was allowed, set up a breach of implied warranty as to the trees furnished in the winter of 1910-11. There was evidence in behalf of the plaintiff, showing a waiver of this implied warranty, by payment in full, after full knowledge of the number of trees that had died, and also by renewal of note after the death of numbers of trees and the breach of the contract were discovered, but there was also evidence for the defendant that the payment of the notes was not voluntary, but that they were paid because they had passed to the bank as an innocent purchaser, and, that as to the purchaser of the note for value, failure of the consideration was no defense. The court directed a verdict in favor of the plaintiff.

The decision of this court upon the questions presented will be sufficiently understood from the headnotes. Judgment affirmed.