This case is before the Court on petition for rehearing. The petition for rehearing is grounded upon the following statement contained therein:
"That said opinion and the order of this Court were based upon the consideration of an assignment of error expressly abandoned by plaintiff in error. This court in reversing the judgment of the Court below based its opinion on the finding that while the second plea of the second set of pleas was crude and deficient, there might reasonably be culled from the statement a good defense to the action of appellees against appellant. This plea was stricken by the ruling of the trial Court in sustaining the plaintiff's demurrer filed April 2, 1928, to the amended pleas of the defendant, filed March 5, 1928, which pleas are denominated by this Court, 'The Second Set of Pleas' and this ruling was the basis of assignment of error numbered two. The plaintiff in error *Page 1493 expressly abandoned assignments of error numbered two, three and four, choosing to rely entirely on assignment of error number one and assignment of error number five. Because of this abandonment the defendants in error did not in their brief or at the time of oral argument before this Court seek to sustain the ruling of the lower Court in sustaining the plaintiff's demurrer to the second and third pleas of the second set of pleas filed by the defendant in the lower Court."
Other grounds of the Motion present substantially the same question.
It is true that the second assignment of error was abandoned and that the opinion rests upon the order which was made the basis of that assignment of error.
Technically, therefore, the decision of this Court to that extent is irregular.
When it is considered, however, that the alleged error of the court below in sustaining demurrer to the original plea is made the basis of the first assignment of error, which is not abandoned, the decision and judgment heretofore rendered by this Court should stand if the original plea presented the same defense in substance as the second plea filed March 5, 1928, demurrer to which was sustained and the order thereon made the basis of the second assignment.
The first plea filed December 5, 1927, is crudely drawn in the sense that its form is crude, its sentences badly constructed and its cogency of a low degree, but, when superfluous words and phrases are eliminated from it, the plea presents a good defense. The plea avers that the note was without consideration and the circumstances which show a lack of consideration stand out in the averments of the plea.
As pointed out in the original opinion, the defendants *Page 1494 in error are not purchasers of the note in due course for value but are chargeable with all the infirmities known to the defendant in error R. R. Wright, Sr., and, therefore, the defense of no consideration or failure of consideration is applicable.
Petition for rehearing denied.
BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur.
WHITFIELD, P.J., AND TERRELL, J., concur in the opinion and judgment.
DAVIS, J., dissents.