Super-Cold Southwest Co. v. Elkins

• Decision Date: 25 November 1942
• Docket Number: No. 7947.,7947.
• Citation: 166 S.W.2d 97
• Parties: SUPER-COLD SOUTHWEST CO. v. ELKINS.
• Court: Texas Supreme Court

Page 97

166 S.W.2d 97

SUPER-COLD SOUTHWEST CO. v. ELKINS.

No. 7947.

Supreme Court of Texas.

November 25, 1942.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Super-Cold Southwest Company against A. Z. Elkins on a note and to foreclose a chattel mortgage. To review a judgment of the Court of Civil Appeals, 157 S.W.2d 946, reversing a judgment for plaintiff notwithstanding the verdict for defendant, the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed and judgment of trial court affirmed.

Malone, Lipscomb, White & Seay, George E. Seay, and Harry Shuford, all of Dallas, for plaintiff in error.

Earl E. Miller, of Dallas, and Treadwell & Roe, of Corsicana, for defendant in error.

ALEXANDER, Chief Justice.

This suit was brought by Super-Cold Southwest Company against A. Z. Elkins in County Court at Law No. 2 of Dallas County to recover on a promissory note and to foreclose a chattel mortgage lien upon one Model 72-13 S Bottle Cooler, a refrigerating device. The defendant alleged a total failure of consideration, and the jury sustained that contention. The trial court, however, upon proper motion rendered judgment for the plaintiff non obstante veredicto. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the defendant. 157 S.W.2d 946. This Court granted a writ of error on alleged conflict of decision.

The chattel mortgage executed by the defendant was in the nature of a sales contract. After setting out the installment payments to be made and other terms of the sale, the contract provided as follows: "No agreement except what is embodied herein shall be binding upon the parties hereto and it is declared that this contract and the above mentioned promissory note contains all agreements, representations, covenants and warranties, express or implied, relative to the operation and sale of said property, and the price thereof and the payment therefor." The defendant alleged as follows:

"* * * that at the time of said sale and the execution of said note, and in consideration thereof, plaintiff warranted said Refrigerator to perform well and guaranteed that it would give perfect satisfaction to the defendant, but that if it did not come up to the requirements and needs for which it was to be used, then in that event the plaintiff would take same up and deliver back to defendant the note which defendant had given to plaintiff as the purchase price.

"That said Refrigerator was and is utterly worthless and of no value to defendant, of all which plaintiff then and there had notice."

Upon the trial the defendant introduced parol evidence to prove that plaintiff's agent orally warranted the refrigerator as alleged by the defendant. The plaintiff objected to this evidence, on the ground that it constituted an attempt to vary the terms of the written contract by oral testimony. Only one issue was submitted to the jury and that was whether or not there was a total failure of consideration, and the jury answered that issue in the affirmative.

There was no allegation whatever on the part of the defendant nor proof to the effect that by reason of fraud, accident, or...