Fuller v. Chenault , 157 Ala. 46 ( 1908 )

ANDERSON, J.

— The bill in the case at bar was filed to cancel a certain mortgage and enjoin a sale thereunder, because of a fraudulent misrepresentation as to a certain horse' purchased by complainant from respondent, and which said horse constituted the sole consideration of the mortgage. The bill contained equity, which said fact was so adjudged by the trial court in overruling the first ground of demurrer to the bill.

If the complainant was induced by fraud to buy the horse, he had the right to rescind the sale by acting seasonably; that is, by restoring or offering to restore the horse within a reasonable time after discovering the fraud, unless the horse was valueless, or, if he failed to do this, to abate the price agreed to be paid. —Eagan Co. v. Johnson, 82 Ala. 233, 2 South. 302. The bill avers an offer to restore the horse upon a discovery of the fraud, and, if this be true, the complainant would have the right to rescind, regardless of the actual value of the horse. He was entitled to such a horse as the respondent represented him to be, and was not compelled to keep him, notwithstanding he may have been worth what he agreed to pay for him. The trial court, therefore, erred in sustaining the second and third demurrers to the bill.

The first plea was bad. Retaining the horse before a discovery of the defect could not operate as a ratification of the sale. , : ¡

The bill avers that the complainant offered to restore the horse to the respondent and to rescind the sale after discovering the fraud, and that the respondent refused to accept said horse and declined to rescind the sale. This reinvested the title in the respondent, and a retention and user of the horse by the complainant did not operate as a ratification of a sale previously rescinded, as he then held the horse as the bailee of the respondent. —Hays v. Woodham, 145 Ala. 597, 40 South. 511, explaining {Samples v. Guyer, 120 Ala. 611, 24 South. 942. Pleas 2, 8, and 4 should have been held insufficient. It is true the fourth plea alleges a retention and user of the horse after a discovery of the fraud, and that the complainant toot no step to rescind the sale; but this is not a sufficient denial of complainant’s averment that he offered to restore the horse. If he offered to restore the horse, he would have the right to rescind, without taking affirmative steps to rescind the contract.

It is true the answer traverses the allegations of the bill, but admits credits upon the indebtedness. The bill offers to do equity, and as the answer does not show that the house and lot is insufficient to cover the indebtedness due upon the mortgage in case the complainant is not entitled to a rescission, the dissolution of the injunction could be of no detriment to the respondent, and it would operate as a hardship on the complainant to sell his house and lot without permitting him to pay up the balance due on the mortgage in case he was not entitled to a rescission. While an answer that is full and unequivocal, and which postively denies every fact upon which the equity for an injunction rests, entitles the respondent to a dissolution of the temporary injunction issued, yet the injunction can and should be continued in force if it appears that irreparable injury may follow, or that it would be inequitable to dissolve the injunction. —Turner v. Stephens, 106 Ala. 547, 17 South. 706; Satterfield v. John, 53 Ala. 127; Chambers v. Ala. Iron Co., 67 Ala. 353.

The decree of the city court is reversed, and one is here rendered overruling the demurrer to the bill, holding that the pleas are insufficient, continuing the injunction, and remanding the cause.

Reversed, rendered, and remanded.

Tyson, O. J., and Dowdell and McClellan, JJ., concur.