A majority of the courts now hold that the renewal of a note with knowledge of a partial failure of the consideration for the original note estops the maker from setting up such defense. Harrington v. Citizens' Investment Security Co., 160 Ark. 320, 254 S.W. 831; Hurner v. Mutual Bankers Corporation, 140 Fla 435, 191 So. 831; American Car Co. v. Atlanta City St. Ry. Co. et al., 100 Ga. 254, 28 S.E. 40; Pioneer Bank and Trust Co. v. MacNab, 41 Ida 146, 238 P. 295; People's Wayne County Bank v. Harvey, 268 Mich. 47, 255 N.W. 436; William Barco Son v. Forbes, 194 N.C. 204, 139 S.E. 227; Moran v. Security Bank Trust Co., 181 Okla. 181, 72 P.2d 814; First Nat. Bank at Pittsburgh v. Singer et al., 322 Pa. 207, 185 A. 647; J.B. Colt Co. v. Ellis (Tex Civ App), 293 S.W. 629; Hatten Realty Co. v. Baylies, 42 Wyo 69, 290 P. 561; 5 Uniform Laws Annotated (Part I) Negotiable Instruments, § 28, 401, note 379; Beutel's Brannan Negotiable Instruments Law (7th ed) § 28, 553; 35 ALR 1258 at 1277; and 72 ALR 600 at 607. Some courts have gone to the extreme of holding that the execution of a renewal note operates as a waiver, not only of known defenses to the original note, but existing defenses which by the exercise of reasonable diligence should have been known.

It is its contention that since defendant by her own evidence has admitted the execution of the various notes, even though the consideration for the original note was the transfer and delivery of the $2,500 note originally executed by Harold Burt, she thereby waived the delivery of such note and waived any defense that she might have had as to the failure of consideration for the original note. In support of this contention counsel cite Nease v. National Bank of Commerce, 174 Okla. 270, 50 P.2d 312, and Moran v. Security Bank Trust Co., 181 Okla. 181, 72 P.2d 814. In the case last above cited we held:

In addition to contesting these points as a matter of evidence and on general principles, Mertz points out that Mrs. Cook later gave the $96,000 note in renewal of the balance due on the $22,000 note and the $56,000 note, and that the renewal of a note with knowledge of defenses, or under circumstances that would have enabled the maker of the instrument to have knowledge, constituted a waiver of any defense that may have existed with respect to the two earlier notes. Moran v. Security Bank Trust Co., 181 Okla. 181, 72 P.2d 814, and other Oklahoma cases. In answer to Mertz's argument the defendants in error lay great stress upon the high character of the fiduciary relationship that existed between him and Mrs. Cook and urged that she had no knowledge of Mertz's derelictions, which are here urged as defenses to the note, and urged that because of her reliance on Mertz she was not likely to make any investigation to ascertain the facts with respect thereto.

"Q. You have no way of fixing approximately and recalling at this time the exact date you signed the note, do you, Mrs. Moran? A. Not exactly, but approximately, Q. What means do you have of fixing it approximately? A. My memory which is fairly good. Q. That is all you have? A. Yes, sir." In the case of Moran v. Security Bank Tr. Co., 181 Okla. 181, 72 P.2d 814, the defendant asserted a defense similar to that presented in the case at bar. Therein the defendant executed a note in consideration of the bank's surrendering to her a note which had been executed by her father.

It was supported by the legal right waived by plaintiff in favor of Breckenridge. Whether Kelly was actually bound by the first note is of no material significance in this action. Our conclusion is in accord with the decision in Moran v. Security Bank Trust Co., 181 Okla. 181, 72 P.2d 814; Linton v. Chestnutt-Gibbons Grocer Co., 30 Okla. 103, 118 P. 385; Menkemeller v. Citizens Nat. Bank, 142 Okla. 230, 286 P. 907. Without conflict, the evidence showed a valid consideration for defendant's promise.