On application for rehearing by appellants, after granting appellees' application for rehearing, a question is presented which was not considered or passed upon by the court. It was sufficiently raised in original brief of appellants, but the writer, taking the view that the notes were not negotiable, dealt only with that question.
When the court took a different view on rehearing, this further question was, by oversight of the writer, not considered. It is this: Defendants propounded statutory interrogatories to plaintiffs, among others, the following:
"If you claim to be the owners of the notes sued on in this cause, please state whether or not you acquired them from the Southern Pine Tar Oil Company. If yes, please set out fully how and in what manner you acquired said notes from said the Southern Pine Tar Oil Company, and all the facts relating to the same, including any contracts or agreements you had with said the Southern Pine Tar Oil Company with reference to said notes sued on."
The notes sued upon were called for as exhibits. The exhibits "attached to said answers" include copies of the notes, and along with them a copy of the related contract, the substance of which is set out in the original opinion. No other reference to this contract is made in the answers.
On consideration, the court concludes that this exhibit, in connection with the interrogatories, affords some ground of inference that the contract accompanied and went into the hands of plaintiffs at the time they purchased the notes. If so, notice was thus brought home to plaintiffs that the notes and contract were parts of one transaction, and they took the notes subject to all the conditions and terms thereof, and subject to all defenses the makers had against the payees.
It follows there was error in refusing evidence of failure of consideration, and giving the affirmative charge for plaintiffs. Appellants' application for rehearing granted, judgment of affirmance set aside, and the cause is reversed and remanded.
All the Justices concur.