ON PETITION FOR REHEARING. Appellee takes exception to the statement that Holden said the note would be for $295, and says it was Ryan who said the note would be for that amount, and insists that this proves that the transaction was not a loan, but a sale of the note to or a discount of the note by appellee. Ryan testified that the day before the note was executed, and after Holden had said he would loan the money if he, Ryan, would sign the note, that Holden said "the payments would run $29 something a month for ten months." Holden testified that Ryan said he was selling the car for $450, was getting $200 cash, and wanted to finance the balance, and that the face value of the note was $295. Ryan did not deny making the statement that the face value of the note would be $295, nor does Holden deny saying that the payments would be $29 something a month for 10 months. We may assume that each of these witnesses testified truthfully. The evidence does not show which of said statements was made first. The note was to be payable to appellee, and it is most reasonable to assume that it named the terms upon which the money would be furnished by it, and that appellant, in response to the *Page 629 statement as to the amount of the monthly payments, then made the statement as to the face value of the note. Let it be assumed, however, that appellant was the first to mention the fact that the note was to be for $295, the result would be the same. McClean gave no note to Ryan and appellee did not discount such a note. The only note ever discussed by the parties and the only note executed was a note given by McClean to appellee, which appellant signed as a maker, and, in consideration of the giving of this note to appellee, it gave the check for $250 to appellant. Appellee not only made this check payable to appellant, but insisted that McClean should pay appellant the $200 in the presence of Holden, and, in this connection, appellee prepared a bill of sale reciting that McClean and appellant had sold the automobile to appellee, without which the conditional-sale contract or "lease note" reserving title in appellee could not have been executed.
Considering only the evidence favorable to appellee, and the inferences to be drawn therefrom in its favor, the transaction must be held to be a loan. Appellee says that all prior 3. negotiations were merged in the contract which is the foundation of this action. We concur in this statement, and hold that the contract on its face completely overthrows the contention that the transaction was the sale of the contract or note by appellant to appellee and a discount thereof by the latter.
Rehearing denied. *Page 630