Opinion
No. 1813.
November 19, 1925. Rehearing Denied December 17, 1925.
Appeal from District Court, Pecos County; C. R. Sutton, Judge.
Action by J. W. Lutz against George Thompson. Judgment for plaintiff, and defendant appeals. Reversed and remanded for retrial.
See, also, 259 S.W. 1108.
T. Wesley Hook, of Gordon, and R. D. Blaydes, of Ft. Stockton, for appellant.
Howell Johnson, of Ft. Stockton, and McKenzie Loose, of El Paso (R. D. Wright, of Laredo, and Wright Matthews, of San Angelo, of counsel), for appellee.
Lutz sued Thompson upon a promissory note of the latter given in part payment for land; the note being payable to the Zimmerman Land Irrigation Company, the vendor of the land. He alleged that he was the owner of the note and lien by indorsement of the payee as well as by separate written assignment. Judgment upon the note and foreclosure of the lien was sought.
Thompson answered by plea in abatement because of a defect in a party defendant, a general demurrer and general denial; also by a lengthy special answer. In the answer he denied the genuineness of the indorsement and assignment pleaded by the plaintiff, and made the affidavit of forgery as required by article 588, Complete Tex.St. 1920, or Vernon's Sayles' Ann.Civ.St. 1914. He further pleaded that, if the plaintiff was the owner of the note, he was not an innocent purchaser for value before maturity.
The plaintiff filed numerous exceptions, general and special, to the various sections of the answer, all of which were sustained, and the entire answer of the defendant stricken out, except his general demurrer and general denial.
A verdict in favor of the plaintiff was returned in accordance with a peremptory instuction.
The plaintiff's general demurrer to the plea attacking the genuineness of the indorsement and separate assignment of the note and lien was sustained. Upon what ground this action was predicated we are not advised and no reason occurs to us why such demurrer should have been sustained. It was fundamental error to do so, and requires reversal.
This suit is to recover upon a purchase-money note. In such a case it is permissible, by way of a plea of failure of consideration, as defensive matter, to set up damages resulting from fraud practiced by the vendor upon the vendee with respect to the subject-matter of the contract, and as to such matter the statute of limitation has no application. Mason v. Peterson (Tex.Com.App.) 250 S.W. 142.
While unskillfully drawn, the special answer, as against the general demurrer sustained by the court, sufficiently pleaded, in abatement of the obligation sued upon, damages resulting from false and fraudulent representations concerning the available water supply for irrigating the land in part payment for which the note was given. Appellee in his brief does not controvert the rule of law that appellant could thus plead in abatement of the purchase price, but says that this portion of the answer availed the defendant nothing because not verified. But an unverified plea of failure of consideration is not a nullity. Unless specially excepted to for want of verification, such defect is waived. A general demurrer will not reach it. Nasworthy v. Draper (Tex.Civ.App.) 28 S.W. 564; Ashcroft v. Stephens, 16 Tex. Civ. App. 341, 40 S.W. 1036; Chapman v. Fennessy (Tex.Civ.App.) 262 S.W. 185; Ry. v. Jackson (Tex.Civ.App.) 86 S.W. 47; Farris v. United States Fidelity Guaranty Co. (Tex.Civ.App.) 251 S.W. 612; Citizens' Garage Co. v. Wilson (Tex.Civ.App.) 252 S.W. 186.
There was no exception, or other objection to the plea for want of verification, and such defect was therefore waived. The sustaining of a general demurrer to the portion of the answer setting up damages resulting from the fraud stated was therefore error.
Some of the special exceptions were properly sustained by the court, but that will not justify an affirmance where a general demurrer has been improperly sustained. Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S.W. 448.
Though no exception was leveled against that portion of the answer setting up that plaintiff was not an innocent purchaser for value before maturity, this also was stricken out according to the court's order. This was error in view of the sufficiency of the defense in the particular pointed out above.
For the errors indicated, the judgment is reversed, and the cause remanded for retrial.