Southern Rock Island Plow Co. v. Williams

• Decision Date: 03 December 1934
• Docket Number: No. 4314.,4314.
• Citation: 80 S.W.2d 340
• Parties: SOUTHERN ROCK ISLAND PLOW CO. v. WILLIAMS.
• Court: Texas Court of Appeals

Page 340

80 S.W.2d 340

SOUTHERN ROCK ISLAND PLOW CO. v. WILLIAMS.

No. 4314.

Court of Civil Appeals of Texas. Amarillo.

December 3, 1934.

Rehearing Denied March 18, 1935.

Appeal from District Court, Floyd County; Kenneth Bain, Judge.

Action by Southern Rock Island Plow Company against T. B. Williams, who filed a cross-action. Judgment for defendant, and plaintiff appeals.

Affirmed.

C. D. Russell, of Plainview, for appellant.

L. G. Mathews, of Floydada, for appellee.

HALL, Chief Justice.

The appellant plow company sued the appellee Williams alleging that he had executed his note payable to D. W. Fyffe, in the sum of $970 on July 20, 1931, payable on or before July 1, 1932, with 10 per cent. interest and 10 per cent. attorney's fees, and at the same time executed a chattel mortgage on certain farming implements and machines, including a model F, Rock Island tractor, and all the wheat to be grown on 310 acres of land in section 27, block D-1, Floyd county. That before maturity thereof and for value, Fyffe indorsed and delivered to appellant the aforesaid note and mortgage, and that appellant is the owner and holder thereof in due course.

The appellee answered by general demurrer and special exceptions, a general denial, and by way of special denial and cross-action alleged that he executed and delivered the note sued upon to J. E. Spencer, agent and representative of the Southern Rock Island Plow Company, payable to D. W. Fyffe in the sum named in plaintiff's petition. That said note was a renewal of a note theretofore given to Fyffe and transferred by the latter to appellant Plow Company. That he executed the chattel mortgage as described in plaintiff's petition. That said note and mortgage were renewals and extension agreements of a prior note and mortgage given November 12, 1930, by him to Fyffe. That the note was given by him originally for a part consideration for one model F, 18-35 Rock Island tractor, which he purchased from Fyffe in February, 1929. That said tractor was guaranteed to be good and perfect in material and workmanship and that each extension and mortgage was secured by plaintiff and its agents and employees by fraudulent means. That said tractor when purchased had a motor in it that had the wrong cylinder head, and that said motor or cylinder head which was on said tractor was for a different motor than the one in the tractor. That the appellant company, through its agents and representatives, promised appellee if he would renew said notes and mortgages that they would repair said tractor and make it fulfill the guaranty. That the company would change the cylinder head. That after changing said cylinder head, the tractor had no power and defendant was unable to use it for the purpose of pulling a combine or plow, such as the tractor was guaranteed to pull, and not until the fall of 1930, when the defendant renewed the original note and gave a new mortgage, was the tractor completely worked over, and upon the representations and promises of G. E. Goodloe, agent and representative of plaintiff, that, if defendant would renew said note and mortgage, the tractor would be placed in first class condition. That said Goodloe, in November, 1930, had said tractor worked over. That while working on the tractor, the motor head was left off, the cylinders got full of water, the cylinder walls rusted, and the motor was rendered useless, all of which occurred after this defendant gave said note and mortgage. That if it had not been for the fraudulent representation and promise of appellant to place said tractor in first-class condition, defendant would not have renewed said note and mortgage and put the additional security on the same. That on or about the 20th day of July, 1931, J. E. Spencer, another agent of plaintiff, came to defendant, stating that plaintiff was ready and willing to place the tractor in good condition as they had so long promised, provided defendant would again renew said note and give a mortgage as described in plaintiff's petition. That defendant agreed to do so, if plaintiff would repair, change, alter, or fix up said tractor and put it in a good condition so that said tractor would do the work that it was guaranteed to do when purchased by defendant, and upon the said J. E. Spencer's promises and assurances that said tractor would be so repaired and placed in good condition for work, defendant renewed said note and gave the mortgage as described in plaintiff's petition. That after he had given said note and mortgage, plaintiff failed and refused and has continued to fail and refuse to place the tractor in a condition to do the work that it was guaranteed to do, and that, if it had not been for the fraudulent promises and fraudulent representations of plaintiff's agent Spencer, this defendant would not have given said note and mortgage, and that said note and mortgage was procured by the fraudulent acts and representations, all of which this defendant relied on, and he, being an ordinary farmer, having dealt with plaintiff fairly and honestly and believing that plaintiff would so deal with him, all of which plaintiff failed and refused to do. That said note sued on was made payable to D. W. Fyffe to defraud this defendant, and has been indorsed to plaintiff by Fyffe, having never owned said note and was never the property of said D. W. Fyffe, the note of which the note sued upon was a renewal note, was indorsed over to plaintiff by said D. W. Fyffe long prior to the date this defendant gave the note and mortgage involved in this suit, and that said note sued on was never the property of the said D. W. Fyffe, and this defendant would further show the court and alleges to be true that the fraudulent representations and fraudulent acts made to and perpetrated upon this defendant as hereinbefore alleged to have been by Goodloe and Spencer, agents and representations of plaintiffs, were fraudulently made to this defendant for the sole and only purpose of inducing this defendant to give the note and mortgage sued on to said G. E. Goodloe and J. E. Spencer, knowing them to be false at the time they were made, and that they had no intention of binding themselves or the plaintiff by said fraudulent statements and acts. That they had no intention of performing said repair on said tractor at the time said promises were made and said note and mortgage procured by said fraudulent acts and representations and with the design to deceive this defendant and to induce this defendant in the giving of said note and mortgage, and said representations were further made without the...