Bain v. Withey & Ottman , 107 Ala. 223 ( 1894 )

COLEMAN, J.

The plaintiff's in the court below, Withey & Ottman, sued the defendant upon his promissory notes, the consideration of which was the purchase of the right to sell a patented fence in the counties of Cherokee, Delvalb, and a designated portion of Jackson county. The defendant filed several special pleas, setting up fraud and misrepresentation as - a defense to the action. After the evidence had closed the court, at the written request of the plaintiffs, instructed the jury to find the issue in their favor.

Neither of the pleas set up a statement or representation as having been made by plaintiffs, as to the stability or durability of the fence, or its adaptability as a barrier to hogs, or to the cost of construction, or any fact characteristic of a fence made after the patent. The language of the plea in this respect is, that plaintiffs represeuteed it “as a valuable and useful improvement,” but unaccompanied by the statement of any fact which rendered it “valuable and useful.” An expression of this character, made with reference to a patented improvement, standing by itself, not emphasizing a material fact, can be but the expression of an opinion, upon which a purchaser has no right to rely ; and this is especially true when the patented improvement is constructed and put on exhibition, and the purchaser examines it for himself. — Tabor v. Peters, 74 Ala., 90, 96 ; Cottrill v. Krum, 100 Mo., 397; s. c., 18 Amer. St. Rep., 549, note p. 556; 8 Amer. & Eng. Ency., 636, note. As stated by Benjamin on Sales, 316 “the vendor is at liberty to praise his merchandise, in order to enhance its value, if he abstain from a fraudulent representation of facts, provided the buyer have a full and fair opportunity of inspecting it, and no means are used for hiding the defects.” A buyer may always protect himself by requiring a warranty of such matters as he is unwilling to take the risk on his own judgment.

The fraudulent facts relied upon as a defense, stated in plea No. 1, are that plaintiffs had no authority from the patentee to dispose of the right to use and sell the patented improvement; and in the second plea, that previous to the sale to the defendant, the plaintiffs had sold the right to the same territory to one Evans. The defendant failed to introduce any evidence which tended to support those defenses. It may be that the right-had. been sold to Evans, but the evidence shows that plaintiffs reposossecl themselves of the right, at the instance of, and for the benefit of defendant, and sold it to him. The suit was not brought for more than two years after the purchase, and during all of that time no one had claimed the right from defendant, or interfered in any manner with his purchase, or the right to sell or use the patent within the designated territory.—Johnson v. Oehmig & Wiehl, 95 Ala., 189; s. c., 36 Amer. St. Rep., 204. What has been said applies to plea No. 4.

Issue was joined upon plea No. 5 without objection. It is not clearly framed, but under our construction of its averments, the burden rested upon the defendant to show that the plaintiffs falsely and fraudulently represented that they possessed the right to sell the patented improvement to defendant, and falsely and fraudulently represented that it was “valuable and useful.” What we have said as to the want of evidence in support of the pleas considered, suffices to show that defendant failed to offer any evidence which would authorize a jury to find the issue in his favor. We deem it unnecessary to consider in detail that phase of the evidence introduced by defendant to show that he offered to rescind the contract within a reasonable time, of which offer he gave the plaintiffs notice. He has failed to establish the fraud which authorized a recision of the contract. The court, did not err in holding that plea No. 3 was insufficient. We find no error in the record.

Affirmed.