Salt Water Resources v. Kirkpatrick & O'Donnell Construction Equipment Co.

GUITTARD, Chief Justice. Kirkpatrick & O’Donnell Construction Equipment Company recovered a judgment by default against Salt Water Resources, Inc. in a suit on a promissory note. Defendant Salt Water filed a motion for new trial alleging “the meritorious defense of failure of consideration.” Attached to the motion is an affidavit of defendant’s president stating: “Further, no consideration was received, in whole or in part by Salt Water Resources, Inc.” This statement is a legal conclusion unsupported by any specific facts. See Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.1972). Consequently, it is insufficient to “set up” a meritorious defense. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); compare Ward v. Nava, 488 S.W.2d 736 (Tex.1972) (where the court found sufficient facts to raise a defense). Because of the insufficiency of the motion, the judge was not required to hear evidence, but he did so. Plaintiff presented evidence of a preexisting debt, which was sufficient consideration for the note. TEX.BUS. & COM.CODE ANN. § 3.408 (Tex.UCC) (Vernon 1968); see also West Coast Mining, Inc. v. Security National Bank of Lubbock, Texas, 442 S.W.2d 821, 822 (Tex.Civ.App.—Amarillo 1969, writ ref’d n.r.e.). Therefore, the court did not abuse its discretion in overruling the motion for new trial. Affirmed.