Roth Shoe Mfg. Co. v. Kartus , 19 Ala. App. 612 ( 1924 )

This action is grounded upon the breach of a contract entered into by and between the parties, for the sale and purchase of a lot of shoes, to be manufactured by plaintiff for defendant. The contract was proven, the refusal to comply on the part of defendant, and the amount of damages. The defendant by way of defense, through and by a plea, "in short by consent," alleges fraud on the part of plaintiff's salesman in obtaining the contract, in that the the salesman fraudulently misrepresented the contents of the contract and relying upon this statement and without reading the contract defendant signed same, when otherwise he would not have done so. The evidence without dispute made a prima facie case for plaintiff. The question submitted to the jury was on defendant's plea of fraud. While the burden of proof is on the plaintiff to reasonably satisfy the jury by the evidence of its right to recover, the burden had shifted in this case to the defendants on their plea of fraud. Moses v Katzenberger, 84 Ala. 95, 4 So. 237. Charges very similar to charge 2 requested by defendant and given by the court have been held bad and misleading in B. R. L. P. Co. v. Milbrat, 201 Ala. 368, 78 So. 224; A. G. S. R. R. Co. v. Robinson, 183 Ala. 265, 62 So. 813; Hobbs Case, 151 Ala. 335,43 So. 844; Carter v. Fulgham, 134 Ala. 238, 32 So. 684; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922. But in Green v. B. R. L. P. Co., 187 Ala. 508,65 So. 781, and authorities therein cited, similar charges are held to be correct. From a consideration of many cases on the subject, we conclude that, while the charge is misleading and may be refused without constituting reversible error, the giving of the charge will not authorize the reversal of the cause, in view of the fact that it was subject to explanatory charges at the request of plaintiff. In this case, the court in its general charge having correctly and fully instructed the jury upon the burden of proof and the rights of the parties, the giving of this charge, even if error, did not probably prejudice the plaintiff's cause.

Charge 1 given at the request of the defendant in writing states a correct proposition of law. Bethea-Starr P. S. Co. v. Mayben, 192 Ala. 542, 68 So. 814.

The evidence was in conflict and therefore the general charge requested by plaintiff was properly refused, and plaintiff's charge, marked B by us, is fully covered in the court's oral charge and moreover the charge pretermits a consideration of the evidence.

Over the objection and exception of plaintiff defendant's counsel was permitted to ask the defendant, as a witness:

"At the time this contract was made, I will ask you if this Mr. Mattox [plaintiff's salesman who made the contract with defendant] made any representation to you as to what the contract contained and if so what?"

The objections on the trial were general and now for the first time the insistence is made that the question called for a conclusion. The question does not call for evidence that is either illegal, immaterial, or irrelevant; the answer is germane to the only issue involved in the plea. Neither does it call for a conclusion, but, if this were a fact, that question could not now be considered, not having been assigned on the trial. Jefferson v. Rep. I. S. Co., 208 Ala. 143, 93 So. 890. The foregoing also applies to assignment 6.

The objection to question and motion to exclude answer, made the basis of assignments 7 and 8, were general and not here and now reviewable on specific grounds not stated on the trial. Authorities supra.

The question and answer made the basis of assignment 9 were properly allowed. If the price of shoes had not declined, defendant would have been bound by the contract, as in that event, though a fraud might have been shown, no injury would have resulted. Fraud, without injury, is not actionable.

The action of the court in permitting the defendant to ask the question made the basis of the eleventh assignment is without error. One of the material questions in the case was involved in the answer.

In view of the foregoing we must hold that the court did not err in overruling plaintiff's motion for a new trial.

There is no reversible error in the record. Let the judgment be affirmed.

Affirmed.