Martin v. Auto Finance Co.

O’QUINN, j. Appellee, .the Auto Finance Company, a corporation, sued appellants, E. V. Martin and T. Q. Martin, composing the partnership firm of Martin Bros., to recover on seven certain notes, each for the sum of $500, with interest and attorneys fees, and to foreclose a chattel mortgage on certain building machinery given to secure the payment of said notes. Appellants, defendants, by their first amended original answer, pleaded general demurrer, general denial and a total failure of consideration, and certain other defenses not necessary to mention. At the trial, defendants, appellants, filed their trial amendment in which -they expressly eliminated all of their defenses pleaded in their first amended original answer, except the general demurrer, general denial, and repleaded their defense of total failure of consideration for the notes in controversy. The cause was tried to a jury but at the conclusion of the evidence the court instructed the jury to return a verdict for plaintiff, the appellee. The jury accordingly returned a verdict for the plaintiff, upon which judgment was entered for $3,500, together with interest thereon at the rate of 8 per cent, per annum from April 26, 1929, and the sum of $525 as attorneys fees (in accordance with the provisions of the notes), same to bear interest from the date of the judgment at the rate of 6 per cent, per annum, and foreclosing the chattel mortgage lien on the property mentioned in the petition and set forth in the •mortgage. Motion for a new trial was overruled and the cause is before us for review on appeal. Appellants’ first four propositions relate to the court’s instructing a verdict in favor of [920] appellee in the face of their defense of total failure of consideration, and insist that such action of the c'ourt was reversible error. This contention is based upon the assertion in appellants’ pleading that appellee ‘sold to appellants the property in question, upon which the mortgage was given to secure the payment of the notes sued on, same having been given for the purchase price of said property, and that said property (four Fordson tractors and four Iron Mules) were not suited for the purposes for which they were bought, would not do the work for which they were purchased and, therefore, the consideration for the notes had totally failed, and the court erred in not submitting the question to the jury. This contention cannot be sustained. There is no evidence showing a sale of the property by appellee to appellants. We do not deem it necessary or helpful to quote or-discuss the testimony. The evidence given by all parties to the controversy, and those in any way connected with the transaction resulting in the execution of the notes sued on is clear and consistent, showing, without dispute, that appellee did not sell the property to appellants but, to the contrary, that appellee’s only connection with the transaction was to cash the notes in question. That being the undisputed fact, the action of the court in directing the verdict was proper. The fifth, sixth, seventh, eighth, and ninth, propositions, in effect, assert that where a dealer, without special warranty, sells machinery, he impliedly warrants the machinery to be suitable for the purpose for which it was manufactured or bought, and, that the machinery involved being worthless for the purpose for which it was sold to appellants, the court should have submitted to the jury their defense or failure of consideration which they plead, and which issue the evidence raised. What we have said above, that there is no evidence to show that appellee sold the property to appellants, but, to the contrary, that all of the evidence showed without dispute that appellee did not sell said property to appellants, and that appellee’s connection with the matter was simply their having bought the notes sued upon, disposes of these assignments. Not having sold the property to appellants, they did not stand in the attitude of warrantor to appellants of the fitness of the machinery for the purpose for which it was bought. There is nothing to show that appellee ever, in any manner, assumed such attitude. Moreover, appellants’ contention as to the failure of the consideration (the notes sued on) given for the purchase of the property, cannot be sustained for the reason that appellants plead that the consideration had totally failed, which is not supported by the proof. The evidence is undisputed that the property (the four Fordson tractors and four Iron Mules) did have considerable value as workable machines and it cannot be contended that they did not have some value, at least as junk. This being true, and the defense pleaded being a total failure of consideration — that the property was wholly worthless, the evidence did not support the plea, and there was no error in the court’s directing the verdict. Powell Co. v. Sturgeon (Tex. Civ. App.) 299 S. W. 274; Advance-Rumely Thresher Co. v. Higgins (Tex. Civ. App.) 279 S. W. 531; City of Cleburne v. Gutta Percha & Rubber Mfg. Co. (Tex. Civ.. App.) 127 S. W. 1072. What we have said renders appellants’ other propositions immaterial, and they are all overruled. The judgment should be affirmed, and it is so ordered. Affirmed.