Moses v. Katzenberger & Sons , 84 Ala. 95 ( 1887 )

SOMEBYILLE, J.

1. The affidavits, to which objection was taken by appellant, were admissible as a part of the correspondence between the parties to the suit. They were enclosed in letters written by the plaintiffs to defendant, and their contents were referred to by defendant in the rendition of his testimony on the trial. They were admissible on the same principle that a conversation between the parties would have been; which embodied the same averments — not as evidence of the facts stated in the affidavits, which could only be proved by the witnesses themselves, but as a part of the res gesta’., which in this case is the correspondence itself.

2. There is one phase of the evidence in this lease which tends to show that, irrespective of the questions raised as to the alleged fraudulent representations made by the plaintiffs regarding the horse and vehicle purchased by defendant, the defendant was indebted to the plaintiffs in the sum of fifteen dollars, for which they were entitled to recover. This was claimed to be due for the set of buggy wheels purchased and shipped at the request of defendant, and for this item he no where denies his liability, except upon the theory that the purchase of the horse, vehicles, and wheels was but one single transaction. It is not claimed that there was any fraud in the sale of the wheels if it was a separate and distinct purchase as alleged by the plaintiffs.

The following charges requested by the defendant, viz.: charges number 1, 6 and 9 — entirely ignore this liability by affirming the defendant’s right to a general verdict in his favor upon the facts, hypothesized in these respective charges. For this reason, apart from other considerations, these charges were properly refused.

3. The defense to the present action is founded on alleged false representations made by the plaintiffs to the defendant as to the age and soundness of a horse sold by the former to the latter.

The defendant’s counsel, upon the trial, expressly abandoned in his argument at the bar all right to defend, based upon the idea of a mere warranty. This eliminated the question of warranty from the case, and justified the refusal by the court of the fourth charge requested by the defendant, which related only to the subject of warranty.

4. In this case there was evidence from which the jury were authorized to infer that the representations made as to the alleged age and soundness of the animal sold may have been intended and mutually understood either as the expression of a mere opinion, on the one hand, or, on the other, as an affirmation of- a facl. This was an important inquiry, and should have been submitted to the jury for their determination. The rule in these two several aspects of the case is different. The affirmation of a fad may constitute fraud, although the vendor at the time had no knowledge of its falsity. The expression of a mere opinion, to be fraudulent, must be shown to be knowingly false, made with the intent to deceive, and to have been accepted and relied on as true. Brown v. Freeman, 79 Ala. 406, and cases cited; Tabor v. Peters, 74 Ala. 90; Jordan v. Pickett, 78 Ala. 331.

The second, third, seventh and eighth charges requested by the defendant were defective in failing to submit to the jury the primary and important inquiry as to whether the representations in controversy were intended- and mutually understood by the parties as the expression of mere opinions, or the affirmation of fads. The second, third and fourth charges, given at the request of the plaintiffs, are reasonably susceptible of a construction conformable to che above views, and are free from error.

5. The fifth charge correctly announced the rule of evidence for establishing fraud in civil cases. The onus in such cases is on the defendant, who sets up the fact of fraud as a defense to the action, to establish it by a preponderance of the evidence to the satisfaction of the jury. — Adams v. Thornton, 78 Ala. 489; Phœnix Ins. Co. v. Moog, 81 Ala. 335.

6. The tenth charge incorrectly assumed that the mere suppression of the age of the horse, or of the alleged fact of her unsoundness, would be fraudulent, whether intentional or not, and without regard to any inquiry as to whether the means of information as to such facts was not equally open to both parties, which one phase of the evidence tended to show. This charge was properly refused. — Jordan v. Pickett, 78 Ala. 332.

7. No representation can amount to an actionable deceit or fraud which is not relied on by the party claimed to be defrauded. If he has an opportunity to make an examination of the article purchased as to quality, and does so, and acts on his own judgment, there is no room for deceit. The first charge given at the request of the plaintiffs went no further than to assert this principle, and was correct. The sixth charge was "also free from error when construed in reference to the evidence in the case. ,

We discover no error in the rulings of the court and the judgment is affirmed.