Risley v. McAdams, 4788.
| Decision Date | 10 July 1937 |
| Docket Number | No. 4788.,4788. |
| Citation | 108 S.W.2d 443 |
| Parties | RISLEY v. McADAMS. |
| Court | Texas Court of Appeals |
Appeal from Donley County Court; S. W. Lowe, Judge.
Suit by Y. O. McAdams against C. L. Risley. From a judgment in favor of the plaintiff, the defendant appeals.
Affirmed.
R. Y. King, of Clarendon, for appellant.
J. R. Porter, of Clarendon, for appellee.
This suit was instituted on the 17th of April, 1936, by appellee, Y. O. McAdams, in which he sued appellant, C. L. Risley, upon a promissory note, dated January 7, 1932, due November 1, 1933, in the sum of $230, bearing interest at the rate of 8 per cent. per annum, and providing for 10 per cent. attorney's fee.
The defense offered by appellant was that the note was void because it was executed in payment for an agricultural lease on a farm and certain used farm machinery, consisting of a four-row lister and a four-row cultivator, and that the farm machinery was, at the time, under a valid and subsisting chattel mortgage held by the International Harvester Company. The elements which appellant claims voided the note were that the sale to him of the farm machinery by appellee, while the same was under chattel mortgage, constituted an illegal transaction, and the note, having been given as part of the consideration for a transaction which was in violation of the criminal statutes of the state prohibiting the sale of mortgaged property, was void.
The note sued on was the balance due on a note in the sum of $400, originally executed by appellant to appellee for the agricultural lease and farm machinery, and at the time the note in suit was executed, appellant paid to appellee the sum of $200 in cash on the original note.
Appellee denied the existence of a chattel mortgage on the farm machinery, and in the view we take of the case, it would seem to be immaterial whether the chattel mortgage was in existence or not. We do not agree with appellant that the original $400 note was void, nor that the note in suit was subject to cancellation on that ground. The most that can be said of appellant's defense to the note is that, if the chattel mortgage was in existence at the time the original note was given, and appellant did not know of its existence, it would have been a fraud upon his rights which would have entitled him to the usual remedies in defense of the note. The law is of long standing to the effect that the rights of rescission or to sue for damages for fraud is waived when the defrauded party enters into a new contract or agreement by which the rights of the parties are adjusted, after he had been apprised of the fraud and with full knowledge of the imposition practiced upon him. Thompson v. Pitts (Tex.Civ. App.) 2 S.W.(2d) 899; Spark v. Lasater (Tex.Civ.App.) 234 S.W. 717; Elliott v. Clark et al. (Tex.Civ.App.) ...
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