John T. Harbine, Jr., brought this action originally in the Montgomery Common Pleas agaist Robert Davis, upon a certain promissory note executed by Davis, the note being secured by a mortgage. The note was made payable to one Rawls who was also the mortgagee.

The defense was failure of consideration and a mortgage of such failure on the part of Harbine, said notes having been given in payment of a truck which was never delivered.

The Common Pleas overruled a motion and demurrer to the answer as it found that a good defense was stated, which ruling was affirmed by the Appeals.

Harbing in the Supreme Court contends:

1. That the demurrer should have been sustained because facts were not stated to constitute a good defense to the allegations in the petition.