Tupper

Plaintiff sued as assignee of a promissory note in the sum of $775 executed by the defendants to W. H. Say on January 16, 1924. Plaintiff had judgment and defendants have appealed on a typewritten record.

On January 16, 1923, the defendants had agreed in writing to buy certain land from Say, a portion of 'the agreed purchase price being paid at the time and the remainder to be paid in fixed installments. At the close of the year the defendants, -being unable to pay the interest and the installments then due, executed a modification of this agreement -with Say whereby the time for payment of all installments on the principal under the contract was continued from the due dates fixed in the contract. At the same time the promissory note in suit was executed covering the amount of interest then due. On June 19, 1924, the parties executed in writing a cancellation and abandonment of the contract of purchase and a release of “any other or further obligations or liabilities” under it. Thereafter the note in suit was assigned to the plaintiff and this action was commenced on the theory that the note was given for a pre-existing debt—the interest due under the contract.

The trial court…