I concur in the conclusion reached in the majority opinion. I am of the opinion that the record shows conclusively that when the defendant in error took an assignment of the contract, and in the action in the trial court declared upon the notes and the contract, and alleged, "that as a part and parcel of the same transaction as the executing of said series of notes, from 14767 to 14784, inclusive, a certain sales contract, which in fact is a chattel mortgage, was executed and delivered by the defendant (plaintiff in error), by the terms of which contract the title in and to the property therein described, would remain in the Gus V. Brecht Butchers' Supply Company, until all the installment notes were paid, * * *" it took the notes with full notice that they were executed and delivered according to the terms of an executory contract under the provisions of which the purchaser of the property described in the contract had the privilege of using the property to determine whether or not the same was reasonably fit for the purposes for which it was manufactured and sold, and if found not to comply with the contract of sale, the purchaser had the right to return the property to the seller. So, the defendant in error, under the circumstances of this case, was not an innocent purchaser of the notes for value before the maturity thereof and without notice, but took the notes governed by the terms and conditions of the contract, which in my opinion was not a chattel mortgage, but was an executory contract under the terms of which the purchaser received the property from the seller with the privilege of trying the same, and if found not to comply with the contract, the purchaser could return the same to the seller within the time specified and according to the terms of the contract.
I therefore concur in the conclusion reached in the opinion prepared by Mr. Justice Kornegay, and concurred in by Chief Justice Lester and Vice Chief Justice Clark, for the reason that, in my opinion, the defendant, plaintiff in error, pleaded a defense, and is entitled to offer his proof in support thereof.
I do not think the issues relative to the notes providing for a reasonable attorney's fee instead of a definite sum, or the issue relative to the failure of the maker to pay one or more notes maturing all unpaid notes, *Page 38 are involved in this case, and I do not concur in that portion of the majority opinion holding such clauses in the notes make the same nonnegotiable.
I am authorized to say that Mr. Justice HEFNER and Mr. Justice McNEILL concur in this conclusion.