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ranties, they do not cease to be such, though Woodruff, Christian & Woodruff, of Sweetfraudulently made.

water, for appellants. Beall & Douthit, of [Ed. Note.-For other cases, see Sales, Cent. Sweetwater, for appellee. Dig. $$ 1214-1223; Dec. Dig. Om 428.] 10. EVIDENCE ww 400 PAROL EVIDENCE TO VARY WRITING.

CONNER, C. J. The State Savings Bank A seller may by a written contract with of Manchester, Iowa, instituted this suit a buyer limit his warranty of the article sold, against R. K. Bolt, C. Voss, and nine others and, in the absence of fraud, accident, or mistaké, parol evidence is not admissible to vary to recover upon a promissory note which, or contradict this contract.

with its interest, aggregated the sum of $3,[Ed. Note.-For other cases, see Evidence, 646, at the date of the trial below. The note Cent. Dig. $$ 1778-1793; Dec. Dig. Om 400.]

had been given for the purchase money of a 11. EVIDENCE em 441-EXCLUSION OF ORAL horse that had been sold to Bolt and others REPRESENTATIONS.

If a written warranty by the seller of a by W. A. Lang & Co., to which company "or horse was executed as a part of the contract bearer” the note was made payable. of sale, and spoke the real agreement of the The defendants, among other things, anparties, a stipulation therein that it was the swered, in substance, that the plaintiff bank only contract or guaranty excluded any warranty not contained therein, and operated to ex- was not the real owner of the note; that it clude evidence that the buyers were induced to had not paid any consideration therefor; and buy by false and fraudulent representations that the suit by it was really for the benefit that the horse was young and sound.

of W. A. Lang & Co. The defendants fur[Ed. Note.-For other cases, see Evidence, Cent. Dig. $$ 1719, 1723-1763, 1765-1845, ther alleged that the note had been fraud

, 2030-2047; Dec. Dig. 441.]

ulently procured by W. A. Lang & Co. 12. SALES 251--ACTION FOR PRICE-DE- by means of certain false and fraudulent FENSES-MISREPRESENTATIONS.

representations relating to the condition and In the absence of a written warranty con quality of the horse which were set up in the stituting a part of a contract of sale, proof of material misrepresentations inducing the pur- petition. Among other things, it was chargchaser to buy is admissible, and it is immaterial ed that the horse was represented to be whether such misrepresentations were fraudu- sound and free from disease; that this replently made, as they could be invoked and con- resentation was false; and that, in fact, the sidered as warranties and equally binding upon the sellers, whether made in good faith or fraud- horse was badly diseased and wholly worthulently.

less, having died some time after the pur[Ed. Note. For other cases, see Sales, Cent. chase. The defendants further alleged that Dig. § 710; Dec. Dig. Omw251.]

the plaintiff bank, if, indeed, it was the own13. SALES 124 RESCISSION FOR FRAUD-er of the note, had full notice of the fraud RETURN OF PROPERTY RECEIVED.

While ordinarily, where a purchaser elects alleged at the time of its purchase, if any. to rescind, he must return the property pur- They also alleged that the note had been chased, yet he need not do so if it be worthless. fraudulently changed and altered since its

[Ed. Note.-For other cases, see Sales, Cent. execution by them by the addition of the Dig. $$ 303–312; Dec. Dig. 124.]

name of C. Voss thereto. Other allegations 14. CONTRACTS Om 10-WARRANTIES - MEET- and defenses need not be here mentioned. ING OF MINDS. Where a warranty by the seller of a horse

The trial upon the issues indicated resultwas not executed at the time of the execution of ed in a judgment for the plaintiff bank, and a note for the purchase price, but, without the the defendants have appealed. knowledge and consent of the buyers, was merely deposited with a local bank by an agent of

Appellant's first assignment of error comthe seller, it had no binding effect; there being plains of the court's action in sustaining the no meeting of the minds, and the seller having plaintiff's exception to paragraphs 3 and 4 no legal right to impose a measure of dama of the defendants' answer which set up forges to which the buyers never agreed.

[Ed. Note.--For other cases, see Contracts, gery and alteration of the note upon which Cent. Dig. 88 21-40; Dec. Dig. Om 10.]

the suit was founded. The paragraphs of the 15. SALES Cm38WARRANTIES-FRAUD.

answer mentioned are as follows: Though a warranty was executed at the "(3) Further answering herein, defendants time of the execution of a note for the pur- say that the name of C. Voss, alleged to have chase price of a horse, and therefore was a part been signed to the notes herein sued, is a forof the contract of sale, its binding effect would gery; that defendant C. Voss never at any time be destroyed by extraneous fraud in the pro- executed said notes or either of them, nor aucurement of the note, as fraud sufficient to nulli- thorized any one else to sign or execute same for fy the note would be equally as forceful as an him or sign his name thereto; hence defendavoidance of the warranty.

ant C. Voss says that he is not liable on the [Ed. Note.-For other cases, see Sales, Cent. notes herein sued on, and in this prays judgDig. $$ 65–77, 85; Dec. Dig. Om 38.]

ment of the court.

"(4) These defendants further say that the Appeal from District Court, Nolan Coun- name of 0. Voss was added to said notes after ty; W. R. Spender, Special Judge.

they had signed the same; that C. Voss never

signed the notes these defendants executed at Action by the State Savings Bank of Man- all; hence the notes herein sued on were not chester, Iowa, against R. K. Bolt and oth- the obligations of these defendants; that said ers. Judgment for plaintiff, and defend- notes had been materially altered since the ex

ecution of same by defendants, if defendants exants appeal. Reversed and remanded.

ecuted same at all, which they deny. And of See, also, 145 S. W. 707.

this pray judgment of the court.”

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To which the plaintiff urged the following the duty of the court to consider everything exceptions, which were sustained by the as properly alleged which by any reasonable court:

construction may be embraced within the “Plaintiff especially excepts to the third sec- allegations made. See Gibbens v. Bourland, tion of defendant's said answer, and that part 145 S. W. 274; Hoechten v. Standard Home thereof attempting to set up the forgery of the name of C. Voss to the notes sued on herein, Co., 157 S. W. 1191. and because said C. Voss is no longer a party to In the fourth paragraph of the defendants' this suit. Plaintiff specially excepts to the special answer it was distinctly alleged that fourth section of said answer, and says that the alteration complained of had been made the same should be stricken out, for the reason that the same, as pleaded, constitutes no since the execution of the note by the delegal defense to the plaintiff's cause of action." fendants, and that the alteration consisted

[1] While the authorities are not entirely of the addition of the name of C. Voss. It harmonious, we think it may be stated that may possibly have been thought that it very generally, and particularly in this state, should have been alleged that the alteration the rule is that any change by a party there had not been made with the consent of the to, without the consent of the opposite par- defendants, and had been made by a party to ty, in the personality, number, or relation of the note, but appellee urged no such objecthe parties to an instrument, constitutes a tions in its exceptions, nor here, and, as material alteration which will avoid the in- against the general demurrer, we think these strument, even in the hands of an innocent allegations, if necessary, are to be implied. purchaser, and it was specifically held in If, in fact, the material alteration was made Harper v. Stroud, 41 Tex. 367, that the fraud- after the execution of the note, as alleged, ulent addition of a name to a promissory and the defendants consented thereto, or note by the holder without the consent of ratified it, the answer setting up such conthe other party to the note constituted a sent or ratification would be in the nature of material alteration, the court there stating, a plea of confession and avoidance, which among other things:

it would be necessary for the plaintiff to "We think the modern authorities, with but have presented by proper plea, and the same few exceptions, agree that the addition by the general proposition seems applicable to a payee or holder of a name of a person as joint and several maker of a note, after it has been want of a specific allegation that the alteracompleted, issued, and negotiated, without the tion was made by a party to the suit. It is consent of the original makers, discharges them said in 2 Cyc. p. 232, note 27: from liability on the note"-citing a number of

"Upon an alteration after execution the preauthorities.

sumption is that it was made by a party claimSee, also, to the same effect, Daniel on ing under the instrument. Therefore it is not Negotiable Instruments, vol. 1, 88 806-809; necessary that the answer should allege what Id. vol. 2, § 1373; Ford v. First Nat. Bank of

is thus presumed.” Cameron, 34 S. W. 684; Matson v. Jarvis, On the whole, we conclude, as before stat133 S. W. 941; Rhodes v. Turpin (Tenn.) 57 ed, that the court erred in the ruling discussS. W. 354; Texas Printing & Lithographing ed, and that because thereof the judgment Co. v. Smith, 14 S. W. 1074; Adams v. Fair must be reversed, and the cause remanded. cloth, 97 S. W. 507.

[5, 6] The numerous remaining assign[2-4] While appellee insists that the ex- ments, we think, may be disposed of in a ceptions quoted are special, it seems quite brief and general way. L. Matthews testified manifest to us that they amount to no more that he was the president of the plaintiff than general demurrer. They are special bank, and, as such, had purchased the note alone in the sense that they point out the in controversy ; that he was the only officer particular paragraphs of the defendants' an- of the bank who had anything to do with swer to which the complaint is directed, but the purchase; that he had full power to make no specific reason is set up why the answers the purchase; and that no other officer of fail to set up a defense, and, as against a the bank knew anything about the circumgeneral demurrer, we think the answers were stances of the purchase. While, under cergood, ånd that the court erred in his ruling. tain circumstances, it might be objectionable The answer made by the appellee in its brief for a witness to state the extent of his powis to the effect that there was no error in ers, yet in the present case, whatever may the ruling complained of, for the reason that have been the powers of the president origi"C. Voss was not a party to the suit, by rea- nally, the bank sues upon the note, thus ratson of a formal dismissal, which was evidentifying the act of the president in the purof record,” and that “a forgery neither adds chase, and an inquiry into his original powto nor takes from, and could not in any way ers is not now apparently material. It may affect the liability on the obligations of ap- be, and possibly should be, said to be objecpellants on the notes.” It must be conced- tionable for the witness to have undertaken ed, we think, that neither the exceptions nor to state that he knew the knowledge possessthe reply of appellee gives light on the speed by other officers of the bank, or to cific reasoning of the trial court which led state, either directly or indirectly, the conto the ruling under consideration. The un- tents of the letters or written communicadoubted rule is that, in passing upon a tion upon which the plaintiff relied as showpleading as against a general demurrer, it is ing its good faith in the purchase, without accounting for their nonproduction; yet the limit his warranty of the article sold, and objections urged went to the entire answers, that, in the absence of pleading and proof part of which, at least, we think, was admis- that, though fraud, accident, or mistake in sible, and, the objection not being good as to the drafting or in the execution of the conthe whole, the assignments relating to these tract, it does not speak the real agreement of questions must be overruled.

the parties, parol evidence is not admissible [7-9] The fifth, ninth, tenth, eleventh, thir- to vary or contradict its terms. 35 Cyc. 379. teenth, fifteenth, seventeenth, and eighteenth [11] If the written warranty given by the assignments of error in some form relate to seller of the horse and pleaded by defendants a warranty purporting to have been executed was executed as a part of the contract of by W. A. Lang & Co., and, among other sale, and if it speaks the real agreement of things, pleaded by the defendants. In view the parties thereto, then the stipulation of the fact that the defendants did so plead therein reading, “This is the only contract or the warranty, the majority wish to express guarantee given us,” would, even if this suit the view that, if through fraudulent and ma- was by the payees of the note, exclude any terial misrepresentations the purchasers were warranty not contained in that instrument, induced to purchase the horse, they could and hence would operate to exclude any evihave sued for a rescission of the contract of dence that the defendants were induced to sale. If they had elected to pursue that buy the horse by representations that the remedy, it would have been incumbent up- horse was sound and young, etc., and that on them to first return the horse, or else the same were false and fraudulently made. show good cause for their failure so to do. [12] Even if such written warranty was But they did not elect that remedy. They not a part of the contract of sale, while proof elected to stand upon the contract and plead of material misrepresentations which ina failure of consideration of the note. AC-duced defendants to buy would be admissible cording to the weight of the authorities, a against plaintiff if it was not a bona fide purchaser of a chattel, when sued for the holder of the note for value and before purchase price, may, in support of a plea maturity, yet whether such misrepresentaof failure of consideration, rely upon ma- tions were fraudulently made would be imterial misrepresentations by the seller, either material, since they could be invoked and express or implied, concerning the chattel, considered as warranties, and therefore equalwhich were relied upon by the purchaser, and ly as binding upon the sellers, whether made parol proof of such misrepresentations is not in good faith or fraudulently. objectionable as varying the terms of the But on this subject the writer wishes to promissory note given for the purchase price say that the warranty extends only to the of the article, since it is but proof of the con- general fitness and capacity of the horse sideration of the note; the consideration of to perform the purpose for which he had a conveyance being always open to proof. been purchased. Lang & Co. were not made 3 Ruling Case Law, p. 947, § 143. But such parties, nor any recovery against them misrepresentations so relied upon by the sought. The plaintiff bank was not a party purchaser can be invoked by him as such a to the warranty, and no recovery on the wardefense, not upon the theory of fraud and ranty was prayed for, and the purpose of the deceit practiced upon him, but because they defendants in pleading the warranty is not are in law warranties, and constitute a part very clear. But the pleading as a whole clearand parcel of the contract of sale, of which ly manifests that the defendants were not the purchaser's note was also a part. Es standing on the contract” of seeking its ensentially the purchaser is allowed to offset forcementi in any of its phases, but, on the damages for breach of the seller's contract contrary, were repudiating the contract in against the seller's demand for the pur- toto on the ground of fraud. The plaintiff chase price of the chattel If such mis- bank, however, seems to have availed itself representations are warranties, they do of the warranty in support of the contention not cease to be such, even though they that the warranty provided the only measure were fraudulently made. 35 Cyc. 378, 379. of damages available to the defendants in By reason of the fact that such misrepre- this case, and the writer thinks perhaps it sentations are warranties, it is held in some will be sufficient to say on this subject in a of the states that they cannot be pleaded as general way that, in the absence of fraud, if constituting a failure of consideration of the the representations relied upon amount merecontract for the purchase price, but, in order ly to a mistaken assertion of the horse's conto be available to the purchaser when he has dition and capacity as asserted in the warelected to abide by the contract as made and ranty, then the warranty, it seems under the is sued for the purchase price, must be plead- following cases, will constitute the defended as a counterclaim for damages. See ants' measure of damages, and their only Pryor v. Ludden & Bates Southern Music relief would be to avail themselves of the House, 134 Ga. 288, 67 S. E. 654, 28 L. R. A. remedy the warranty provides, which was the (N. S.) 267, and notes.

return of the horse and the acceptance of [10] It is also well settled that the seller another in his place. See Oltmanns Bros. v. etc., Co., (Ky.) 97 S. W. 18; Shearer v. Gaar, i cient guide upon another trial, it is ordered etc., Co., 41 Tex. Civ. App. 39, 90 S. W. 684; that for the errors first discussed the judgWalters v. Akers (Ky.) 101 S. W. 1179; Hol- ment must be reversed, and the cause rebert v. Sanzenbacher, 159 S. W. 1054; Haynes manded. v. Plano Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532; Crouch y. Leake, 108 Ark, 322, 157 S. W. 390, 50 L. R. A. (N. S.) 774. But the PHILLIPS v. NEWSOME. (No. 8281.) writer thinks that we are prevented from (Court of Civil Appeals of Texas. Ft. Worth. now so declaring the law, for the reason that

June 26, 1915.) defendants alleged fraud in the procurement (1. FIXTURES Om 21-STATIONARY ENGINE. of the note upon which the plaintiff sued

Where defendant bought real estate on that extended beyond the limits of the war- which was a cotton gin, and at the time of such that extended beyond the limits of the war- purchase there was in the building a stationary ranty, and the jury in their verdict, in an engine bolted to a concrete bed five feet deep, swer to special issues, expressly so found. which had been prepared for that purpose, the In this view of the case the warranty will shaft from the engine being attached to the not prevent the relief sought by the defend- building, the engine was a fixture, title to which ants in this case in event it should be found passed to defendant with the land.

[Ed. Note.-For other cases, see Fixtures, that the plaintiff was not a purchaser before Cent. Dig. $$ 47–56 ; Dec. Dig. Om 21. maturity and for value and without notice For other definitions, see Words and Phrases, of fraud, for in such event the defendants First and Second Series, Fixture.] might elect to affirm the contract and sue 2. FIXTURES 21-BONA FIDE PURCHASERupon the warranty, or, as they do, seek to de

CHATTEL MORTGAGE-RECORD NOT BINDING. feat the recovery upon the note by reason knowledge of a recorded chattel mortgage on an

Defendant, having purchased land without of the fraud committed in its procurement. engine, permanently attached to the ground, held As stated in Blythe v. Speake, 23 Tex. 430, by the seller of the engine to defendant's grantor, quoting from the headnote:

took clear title to the engine upon purchasing

the real estate without searching the chattel A party defrauded in a contract has his mortgage records, since it is the policy of the choice of remedies. He may stand to the bar- law that title to real estate shall appear upon gain and recover damages for the fraud, or he the records designated for that purpose. may rescind the contract, return the thing

[Ed. Note.--For other cases, see Fixtures, bought, and recover back what he has paid."

Cent. Dig. $$ 47-56; Dec. Dig. Om 21.] See, also, cases cited in 15 Ency. Dig. Tex. 3. FIXTURES 27-CONTRACT AGAINST FIXRep. 453, § C; 3 Ruling Case Law, p. 947, §

ATION_VALIDITY. 143.

The mortgagor and mortgagee of personal [13-15] In this connection it will perhaps contract that such property shall not become

property can, as between themselves, validly be well to add that, while ordinarily, where a fixture on its attachment to real estate. the purchaser elects to rescind, he must re- [Ed. Note.--For other cases, see Fixtures, turn the property purchased, yet he need not Cent. Dig. $$ 5, 22, 25, 44, 45, 54; Dec. Dig?

On 27.] do so if it be worthless. Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658. It should per- Appeal from District Court, Bosque County, haps be further said that the defendants,

Action by D. F. Phillips against J. L. Newamong other things, pleaded to the effect that

some. Judgment for defendant, and plainthe warranty, in fact, had not been executed tiff appeals. Affirmed. at the time of the execution of the note; that, without their knowledge and consent,

Carlock & Carlock, of Ft. Worth, for apit had been merely deposited with a local pellant. H. E. Trippet, of Hico, for appellee. bank by the agent of W. A. Lang & Co. If this allegation be true, the warranty would

CONNER, C. J. This is an appeal from a have no binding effect in any event; as in judgment perpetuating a temporary writ of such case there would be no meeting of the injunction issued out of the district court of minds of both parties to the contract, and Bosque county to restrain the sale of a certhe vendor would have no legal right to im- tain stationary steam engine, alleged to conpose a measure of damages to which the de- stitute a part of the permanent fixtures of fendants never agreed. Even should it be certain gin property and lots owned by the found, contrary to the contention of the de-appellee, Newsome. The levy and threatenfendants, that the warranty was executed at ed sale was by the appellant, Phillips, as the time of the execution of the note, and constable of precinct No. 2 of Bosque county, therefore part of the contract declared upon, by virtue of an order of sale issued out of then also its binding effect would be destroy- a justice court in favor of the Southern ed by the establishment of extraneous fraud Trading Company and against the Eubanks in the procurement of the note; for fraud & Henry Gin Company, the order having been sufficient to nullify the note would be equally issued in accordance with the terms of a as forceful to operate as an avoidance of the judgment foreclosing a chattel mortgage upon warranty part of the same contract.

the engine mentioned. No other assignment presents questions we There is but little, if any, conflict in the think it necessary to discuss, but, believing material facts. In substance, they are that that what we have said constitutes a suffi-| in August, 1911, the Southern Trading Company of Texas sold the engine in question to i gine, and that the engine is fastened to the the Eubanks & Henry Gin Company, the lat- concrete foundation by bolts; that the shaft ter company at the time executing a chat- that runs from the engine is fastened to the tel mortgage upon the engine to secure the house. The evidence as a whole undoubtedpayment of part of the purchase money. The ly tends strongly to show that the engine mortgage, among other things, contained a was originally attached to the other gin proprecital that the engine

erty with a view of its permanent location, “shall not become a fixture attached to any real- and, unless it must be otherwise held bety but shall remain as personal property, the cause of the record of the chattel mortgage title to remain in the Southern Trading Compa- in favor of the Southern Trading Company, ny of Texas until fully settled for as herein pro- there can be no question but what the envided."

gine in controversy became a permanent fixThe mortgage was seasonably and duly re- ture upon the lots upon which the gin propcorded in the chattel mortgage record oferty was located so that the title and posBosque county, to which the Eubanks & Hen- session of the same passed to the appellee ry Gin Company took the engine and used it with the deed that he received therefor. See in the construction and operation of a cot- Tiedeman on Real Property (3d Ed.) § 13; ton gin on lots 1, 3, 4, 5, 6, 8, 9, 11, 12, 13, Jones on Chat. Mortgages (5th Ed.) & 128; and 14, in block 5, in the town of Iredell. Brown v. Roland, 11 Tex. Civ. App. 648, 33 Later, to wit, in 1912, the Eubanks & Henry S. W. 275; Jones v. Bull, 85 Tex. 136, 19 Gin Company not having paid their mortgages. W. 1031; Watson v. Markham, 33 Tex. debt at its maturity, the Southern Trading Civ. App. 476, 77 S. W. 660; Sinker v. ComCompany of Texas instituted its suit against paret, 62 Tex. 476; Cole v. Roach, 37 Tex. the gin company in the justice court of pre- 419; McJunkin v. Dupree, 44 Tex. 501. cinct No. 2 of Bosque county, and prosecuted

[2, 3] We also think that the court below it to a judgment in their favor, foreclosing properly concluded that appellee was not afthe mortgage before mentioned; and, as stat- fected by the terms of the mortgage under ed, it is by virtue of this judgment that the which the Southern Trading Company claimenjoined order of sale was issued. In Au

ed, or of its record. While as between the gust, 1912, however, prior to the entry of parties to the mortgage it is undoubtedly the judgment above mentioned in favor of true that the character of the property may the Southern Trading Company, the appellee, be fixed by a contract, that is, the purchaser J. L. Newsome, purchased the lots and gin may estop himself from claiming the propproperty before mentioned, paying a valua-erty as a part of the realty by reason of a ble consideration, and received a warranty subsequent attachment thereof to the soil, deed. At the time of this purchase he was but appellee was not a party to the mortwithout any actual notice of the claim of gage contract under consideration. He was the Southern Trading Company, or of its not affected by the provision that the engine chattel mortgage.

should not become a part of the realty, and [1] In reviewing the proceedings below we was without knowledge of it. As against the are called upon, by the assignments of error, mortgagor, appellee was a purchaser in good to determine whether the engine at the time faith and without notice and had the right to of appellee's purchase of the gin was per-view the property in accord with its apsonal property, as appellant contends, or parent condition and character at the time whether it constituted a part of the realty, of his purchase. Among other things, after as appellee insists, and this question depends a review of the authorities, it is said in the upon the further question of whether, at the case of Ice, Light & Water Co. v. Lone Star time of appellee's purchase, the engine had Engine & Boiler Works, 15 Tex. Civ. App. become so attached to the real property as 694, 41 S. W. 835: to become a fixture thereon. The evidence

"The better opinion is that a purchaser of the may be said to be conflicting upon this point, realty is bound only to take notice of the record but, tested by the ordinary rules, we can title of the realty, and is not in any way bound but think that the evidence fully sustains the to examine the records for chattel mortgages, for trial court's holding, to the effect that the mortgage upon fixtures on such realty.' engine had become a fixture and constituted

The case of Tibbetts v. Horne, 65 N. H. a part of the real property upon which it 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am. St. was situated. The appellee testified that the Rep. 31, is a case quite similar to the one engine upon which the levy had been made now under consideration, and it is there said: was a part of the gin machinery at the time

"There is no principle of public policy to be he bought the gin; that it was pointed out subserved by fostering the claim of one man to to him as a part of the gin and connected the enjoyment and exercise of a right and intertherewith at the time; that it was bolted est in and over the real estate of another, at

variance with the record title and apparent ownto the floor, that is, bolted to the concrete ership. But, on the other hand, the policy of the foundation; that if the engine was taken law of this state is that the public records out of the gin, it would destroy the useful- * should show the true state of the titles. ness of the gin; that a concrete foundation, ture of the interest in respect to such property

Whatever may be the rights or the nathought to be five or six feet in the ground, * as between the original parties to the

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