Opinion
No. 13,133.
Filed November 1, 1928. Rehearing denied February 13, 1929.
1. PLEADING — Suit on Note Covering Conditional Sale Contract — Contract not Necessary Part of Complaint. — In suing on a note covering deferred installments on a conditional sale contract, the complaint need not set out the sale contract, although referred to in the note made an exhibit with the complaint, as the two instruments are separate and complete in themselves, and a motion to make the complaint more specific by setting out the sale contract and a demurrer thereto on the ground that the contract should have been set out therewith were properly overruled. p. 558.
2. BILLS AND NOTES — Negotiable Instruments — Note Containing Acceleration Clause Negotiable. — A note covering deferred installments under a conditional sale contract, and providing that if any installment was not paid at the time specified, the entire amount of the note, would, at the option of the holder, become due and collectible, was a negotiable instrument. p. 560.
3. BILLS AND NOTES — Defenses Thereto — Innocent Purchaser for Value — Plaintiff Entitled to Recover. — Where note covering the deferred installments of the purchase price of an oil burner was sold, before maturity, to an investment company, paying value therefor, without any knowledge of the purchaser as to the article purchased or as to any representations made by the seller, in a suit on said note by the purchaser thereof, the plaintiff was entitled to judgment, though the defendant claimed that the oil burner did not do the work the seller represented it would do. p. 560.
4. BILLS AND NOTES — Note Given for Purchase Price of Article Purchased — Article Misrepresented — Maker not Entitled to Judgment against Purchaser. — The fact that an oil burner, for which a note was given, did not do the work it was represented as doing, and that, as a result thereof, the maker of the note suffered damages, would not entitle such maker to a judgment against plaintiff, the purchaser of the note, when sued thereon by such purchaser. p. 560.
From Marion Municipal Court (771); Clifton R. Cameron, Judge.
Action on a note by the Brandt C. Downey Company against Anna Dorbecker, maker of the note, in which the defendant filed a cross-complaint against the plaintiff and the Hobson-Hall Distributing Corporation, payee of the note. From a judgment for plaintiff, the defendant appeals. Affirmed. By the court in banc.
Lester C. Morris and Walter G. Todd, for appellant.
L.R. Zapf, for appellees.
This action was commenced by the appellee Brandt C. Downey Company filing a complaint against the appellant, wherein it sought judgment upon a promissory note, of which it was the holder, and which note was made an exhibit to the complaint. The complaint was answered by general denial, and also answers of no consideration, and of knowledge of defense to said note by said Downey company, at the time it purchased the same from Hobson-Hall Distributing Corporation, the payee named therein. Appellant also filed a cross-complaint, naming as defendants thereto the said Downey company and said Hobson-Hall Distributing Corporation. The issues were closed and the cause submitted to a jury for trial, which resulted in a verdict in favor of said Downey company on its complaint against appellant, and in the sum of $140 and attorneys fees, and in favor of appellant and against said Hobson-Hall Distributing Corporation in the sum of $400. From this judgment, this appeal is prosecuted, and the questions presented are those hereinafter considered.
Appellant filed a motion to make the complaint more specific, which motion was overruled, and this action is presented as error. It appears from the record that the appellant on 1. March 5, 1926, purchased from the appellee Hobson-Hall Distributing Corporation one Vapor-Heat Oil Burner, two, #1 Units, at and for the sum and price of $175; that said property was purchased under a lease, or conditional sales contract; that the price to be paid therefor was $175, of which, the sum of $35 was to be and was paid cash in hand; that a note was executed for the remainder of the purchase price — $140 — payable in four equal installments, payable on the tenth day of April, May, June and July next following, with interest at the rate of eight per cent. after maturity, and attorney fees; that said note provided that if any installment thereof was not paid at the time specified, the entire amount of said note should, at the option of the holder thereof, become due and collectible without relief. The note also contained the following recitation, viz.: "This note covers deferred installments under a conditional sale contract made this day between the payee and maker thereof." Based upon this latter clause, appellant moved to make the said complaint more specific by "alleging and setting forth the conditional sale contract" referred to in Exhibit A, said exhibit being the note above referred to, and being the note in suit. The court did not err in said ruling. The said note and the said sale contract were each complete in and of themselves. There was no interdependence, and the fact that the note, by way of recitation, mentioned the sales contract, did not make said sales contract a part thereof.
The appellant also demurred to said complaint, and this demurrer was based upon the same ground as said motion, namely: that said sales contract was a part of said entire contract, the same consisting of both said note and said sales contract, and that, therefore, it also should have been set out as a part of said complaint. We conclude that, as said contracts were each separate and entire, there is no merit in this contention.
At the conclusion of the evidence, the court instructed the jury to return a verdict in favor of the Brandt C. Downey Company, and this action of the court is also 2, 3. assigned as error. The testimony shows, without contradiction or dispute, that said Downey company became the owner and holder of said note, for value, within a day or so after the same was executed; that the Downey company was engaged, as a part of its business, in buying and selling commercial paper; that there was no connection between the Downey company and the Hobson-Hall corporation; that the Downey company, at the time it purchased said note had no knowledge of any complaint or contention on the part of appellant, as to said article purchased, or as to any statement or representations made to her by said Hobson-Hall corporation. The note in suit was negotiable and, under the undisputed evidence, the Downey company was entitled to a verdict and judgment thereon, and the court did not err in giving said instruction.
There is testimony in this record showing that said oil burner did not do the work it was represented as doing, and that, as a result thereof, the appellant suffered damage, but that 4. fact did not, in this case, entitle the appellant to any judgment against the appellee Downey company, and there was no error in refusing to give appellant requested instruction.
All other contentions of appellant rest upon the assumption that the said note was not a negotiable instrument, and that, therefore, the holder thereof was not protected. We have already held that said note was negotiable and this holding disposes of all these contentions.
We find no error. Affirmed.