Giving the deposition of the defendant Felton Williams the construction in his favor wherever there is a contradiction or inconsistency in it, we are of the opinion that it demands a finding that the defendants made payments on the note sued on after it was signed.
Williams did not deny signing the note. He admitted it, though contending that he did so unwillingly, and that the amount of the note was $3,068 rather than $3,600. The note shows for itself what the amount was. He readily admits in his deposition that on the date of the note all previous notes owing to the bank by him and his brother were consolidated into the note which they signed on that day, and that the resulting renewal note represented all that he and his brother owed to the bank. While the deposition may indicate that the witness was a bit confused, it results only from the amount of the note—not as to his having signed the note or as to payments which he and his brother made on it. “In ’63 we signed a note for $3,068; that’s what we contended to sign. . . Q. That was a consolidation of the 1962, 1961, and all back— A. ’59. Q. That brought it all up to date at that time, on June 22nd, 1963? A. That’s right, the ’59 note was $2,000, the 1960 note was $2,000, and I paid a payment on the ’601, which left $1,700, which I renewed. Q. Well, you and Erastus signed that note on June 22, 1963? A. Yes, sir.”
Concerning the payments he testified: “Q. Did you make any payments on this note? A. On the— Q. June 22, 1963 note? A. Yes, sir—no we didn’t, because in ’63, in ’62, in ’63 we had a $700 check there. Q. Now in your answer you alleged that you paid them on October 15, 1963, that you paid them *780$300 on this note? A. Well it was he and I together. Q. .Each of you? A. Paid $300. Q. I am talking about you now, you allege in your answer that on October 15, 1963, that you paid $300 on this note, is that correct? A. Yes, sir, that’s correct, yes sir . . . Q. And you also allege that Erastus paid $300 on this note on October 15, 1963? A. That’s right.”
In their answer the defendants asserted that they had made payments of $300 each on October 15, 1963, which was at a time when they had previously renewed all of their indebtedness to the bank by execution of the note of June 22—that being the note sued on. At the time the payments were made the bank held no other note from them. There was never any withdrawal of the allegations of payments in the answer, and while the answer did not specifically allege that the payments were made on the note, resulting in our holding in the prior appeal that waiver of the duress was not shown by the pleadings, the defendant’s testimony makes it certain that the payments were made on it.
The admission of payments in the answer, together with the admission in the testimony that they were made on this note, demands a finding that the payments were made on the note by the defendants after they had unwillingly signed it, if they signed unwillingly as they contend, and there is no escape from the waiver of any claim of duress. Monk v. Holden, 186 Ga. 549 (198 SE 697); Augusta Motor Sales Co. v. King, 36 Ga. App. 541 (137 SE 102); Clifton v. Dunn, 92 Ga. App. 520, 522 (88 SE2d 710). It unquestionably appears that the payments were made at a time when the defendants had full knowledge of all of the facts which they now claim and assert as to the alleged duress and as to the amount of the note. Cf. Hoke v. City of Atlanta, 107 Ga. 416 (33 SE 412); McCarty v. Mobley, 14 Ga. App. 225 (3) (80 SE 523); Dunton v. Norton, 42 Ga. App. 310 (155 SE 775).
Chief Judge Felton’s dissent, urging the rationale of a plea of failure of .consideration as applicable in connection with a plea of duress, is inapposite for the reason that the rules applicable to the pleas are wholly different. A plea of total failure of consideration includes a plea of partial failure (A. E. *781Speer, Inc. v. McCorvey, 77 Ga. App. 715 (4) (49 SE2d 677)), while a plea of duress, a species of fraud, goes to the whole contract, just as does a plea of rescission for fraud (Lytle v. Scottish American Mortg. Co., 122 Ga. 458, 466 (3) (50 SE 402)), or a plea of non est factum. Code § 81-701. But a waiver of the duress occurs when payments are voluntarily made on the note after its execution, just as would a defense of non est factum when it' appeared that the defendant asked an indulgence of time when suit against him was threatened, and made payments on the note after that. Anderson v. Mechanics Loan &c. Co., 58 Ga. App. 147 (198 SE 87), and Cf. Yarbrough v. Seagraves, 47 Ga. App. 436 (170 SE 553). This would not follow if we were dealing with a plea of failure of consideration, which, as above stated, includes a partial failure. Pearson v. Brown, 105 Ga. 802 (2) (31 SE 746).
Judge Jordan’s dissent, urging as the law of the case the former ruling in Williams v. Rente Banking Co., 112 Ga. App. 384, supra, and particularly what was said at page 388 on the motion for rehearing, is likewise inapposite. In that case the court dealt only with the pleadings. Now we deal with the pleadings and the evidence submitted in connection with a motion for summary judgment.
In the former opinion this contention that the duress was waived by the subsequent payments was denied because “it was not alleged that these payments were made on the note sued upon which was executed on June 22, 1963,” and for the reason that “no facts are set forth in the defendants’ answer which show that they ratified the note sued upon after the removal of the alleged duress.”
Now we have not only the allegation in the answer of the payments made in October, after the note had been executed in June, but additionally the positive, unequivocal and uncontradicted testimony of the defendant Felton Williams that the payments were made upon the note of June 22, 1963—the note sued upon. The authorities above cited unqualifiedly stand for the proposition that payments on a note, voluntarily made after the alleged duress, constitute a waiver of the duress and ■ a ratification of the note. Thus,.the allegation of the payments in *782the answer together with the testimony now demand a finding of waiver and ratification.
The law of the case doctrine would apply when no new facts appear that authorize a different view or result. But if, as to the pleadings or the evidence, or a combination of the two, the case is substantially different from what it was when on prior review, the former ruling is not the “law of the case.” Davis v. Wight, 207 Ga. 590 (1) (63 SE2d 405); McDay v. Long, 67 Ga. App. 50, 53 (19 SE2d 436); Ritzert v. Bulloch County, 100 Ga. App. 686 (112 SE2d 235).
The evidence, clearly admissible (and there is no exception to it), made certain that which the pleadings had not done— that the payments were indeed made upon the note sued upon, and supplied the very deficiency but for which a waiver and ratification would have appeared on the former appeal. Cf. Carter v. Carter, 207 Ga. 460, 462 (b) (62 SE2d 171). Because of this material difference there can be no contrary law of the case in the former opinion.
Judgment affirmed.
Nichols, P. J., Frankum, Hall and Deen, JJ., concur. Felton, C. J., Bell, P. J., Jordan and Pannell, JJ., dissent.