OPINION

Submitted, on application of defendant in error for rehearing.

We have examined the case to which our attention has been directed, namely, Jus*319tina Gardner v Hengenold, 6 O.D. (Reprint), 997. We do not And that the la\v of this case, so far as it was required to be enunciated by the facts, is in conflict with our decision. We do not believe that the doctrine of merger has such application to the facts in this case as to prevent Walton from asserting his defense against Wilkins.

The application for rehearing will therefore be overruled.