First Prize, Inc. v. Fireman's Fund Ins. Co. of California

269 S.W.2d 939, 1954 Tex. App. LEXIS 2703

• Court: Court of Appeals of Texas
• Decided: June 17, 1954
• Docket: 12715
• Status: Published

Opinions

GRAVES, Justice.

This suit was brought by the appellee, against the appellant to recover on a promissory note for $6,143.51 dated May 29, 1951, executed by appellant, and payable to the order of Miller Wrapping & Sealing Machine Co., at Chicago, Illinois, sixty days after its date.

Such note was endorsed over to the ap-pellee here by the original payee — Miller Wrapping & Sealing Machine Co. — after its recited maturity date.

The appellant here, in the trial court interposed the defense that the note was not enforceable because: (1) it was not supported by a consideration when originally executed; • (2) alternatively, subsequent -to its recited execution, there had occurred a failure of consideration for i,t.; and (3) further, alternatively, the note had been originally conditionally delivered, with .the understanding by the original payee — Mil-, ler Wrapping & Sealing Machine Co. — that there would be no effective delivery of it until there had.been a compliance with the condition precedent, to wit: the successful installation of the described machinery, which the company had agreed to sell to appellant and to install in its plant.

Following the trial before the court without a jury, it entered its judgment that ap-pellee recover of and from the appellant the face value of the note to that date; hence this appeal by the latter.

In this Court appellant presents three points of error, substantially to this effect:

1. The note was not supported by any consideration when originally executed;

2. There had been no consideration, in that, subsequent to its execution, there was a failure of consideration; and

3. There had never been an effective delivery of the note, in that there was a condition precedent to the effective delivery of it.

None of these presentments, it is determined, should be sustained.

Appellant’s brief and its supporting authorities and recited points of error seem to contend that the only issue involved upon this appeal was whether the note declared upon was supported by a consideration, or whether the condition precedent to the effective delivery of the note was met; whereas, in the appellee’s view, the instruments described above, i. e., the sales contract, and its amendment, the described note, and the accompanying chattel mortgage securing it, were but parts of a single transaction, from which one of its elements could not be properly divorced from the others; further that all these instruments must be taken and considered together, and that when they are they make out that the note sued upon was a simple one for the purchase money of machinery and that it represented the exact balance due at the •.time of the suit under that contract.

The learned trial court adopted the appellee’s view, which is thus stated, in its legal effect, in 6 Tex.Jur., page 644: “Contemporaneous Agreements. — In considering bills and notes as evidencing an agreement between the parties, application is made of the .fundamental rule that other instruments executed at the same time, for the same purpose and in the course of the same transaction are to be construed therewith, — that is, all the papers are giv'en the same effect, ás though they were in fact a single instrument.” See also these additional authorities to the same effect: Bender & Landa v. Freidrich, 39 Tex. 276, page 277; Patterson v. Yellow Cab Mfg. Co., Tex.Civ.App., 298 S.W. 918; Producers Inv. Corp. v. Spears, Tex.Civ.App., 232 S.W.2d 761, at pages 763, 764.

Under the conclusions just recited, the appellant’s authorities relied upon in support of its position that appellant is not liable upon this note because of the alleged failure of consideration there for it, such as Johnson v. Elmen, 94 Tex. 168, 59 S.W. 253, 52 L.R.A. 162; Thrift Packing Co. v. Royal Mfg. Co., Tex.Civ.App., 27 S.W.2d 255 (writ of error dismissed); Watson v. Rice, Tex.Civ.App., 166 S.W. 106 (writ of error refused); Willistpn on Contracts, Vol. II, Sec. 840, page 1608, text and also note 39; have no application to what the trial court found were the controlling facts in this controversy.

Finally, and stating it another way, it is clear that appellant’s entire defense rests upon its contention that the note it so gave was not enforceable because the payee therein, the Miller Wrapping & Sealing Machine Co., failed to satisfactorily install the machinery for which it was given; whereas there is no controversion of the fact the trial court was bound to have found that the machinery had not only been originally delivered to the appellant but was in its plant awaiting installation at the time it was destroyed by. fire. Wherefore, it is indisputable that the Miller Company complied with its obligations under the' sales contract just as far as it had been possible to do. Applicable authorities upon -this question seem to be those holding that, in the absence of a contrary agreement, the risk of loss of goods must be borne by the party who has title thereto. Christian v. Moore, Tex.Civ.App., 252 S.W. 1116; Malone v. Dawson, 117 Tex. 377, 5 S.W.2d 965, 60 A.L.R. 665.

Further discussion is deemed unnecessary, since these conclusions determine the merits of the appeal. The trial court’s judgment will, therefore, be affirmed.

Affirmed.

HAMBLEN, C. J., dissenting.