Spencer v. Tripplett , 1916 Tex. App. LEXIS 349 ( 1916 )

October 2, 1914, appellee gave the Acme Sales Company an order for certain merchandise to be shipped to him at Floydada, Tex. These goods were to be sold under certain conditions and in a certain manner. The Acme Sales Company guaranteed to ship 60 days prior to the close of the contract 165 fountain pens to appellee, to be sold in accordance with the terms of a certain contest for a piano. The Acme Company agreed to take back, at the end of the 60-day contest, all of the pens remaining unsold, and to refund appellee at the amount of $1.50 for each pen remaining unsold. This order and the undertaking on the part of the Acme Company were printed upon the same sheet of paper with a note, signed by appellee, for $265. These instruments were not separated by a perforated or other line. Before the maturity of the note or any installment thereof the note was detached from the contract and transferred to one E. E. Pinter, who in turn sold and transferred it for a valuable consideration to the appellants, before maturity, and without notice of any defense. The note, when construed in connection with the remainder of the contract, was not negotiable. This suit was filed to collect the note.

Among other defenses, appellant set up a failure of consideration in that the pens were never shipped by the Acme Company nor received by him, to which appellants replied that they had no knowledge of any such agreement on the part of the Acme Company or any other person. The order and guaranty were at the time of their execution a part of the note, and the detachment of the note from the other instruments was such an alteration as changed the liability of appellee in a material respect and rendered the note invalid in the hands of even an innocent purchaser. When the note was separated from the contract and guaranty, it was no longer the undertaking of appellee, and the authorities are practically unanimous in holding the note under such circumstances absolutely void. Stephens v. Davis, 85 Tenn. 271, 2 S.W. 382; Law v. Crawford, 67 Mo. App. 150; Price v. Tallman, 1 N.J. Law, 447; Scofleld v. Ford, 56 Iowa 370, 9 N.W. 309; Tate v. Fletcher, 77 Ind. 102; Rockford v. McGee, 16 S.D. 606, 94 N.W. 695, 61 L.R.A. 335, 102 Am. St. Rep. 719.

The judgment is affirmed.