Drinkard v. Embalmers Supply Co. ( 1943 )

Our authorities have adopted the view that when a contract is procured by fraud, and defendant receives goods or money as a feature of the consideration, there is a duty to exercise an election to rescind and give notice of that election in due time, although the fraud related to the contents of the paper. These authorities make no distinction by reason of the fraud being in that respect. Standard Tilton Milling Co. v. Mixon,243 Ala. 309, 9 So.2d 911; Illinois Central R. Co. v. Johnston,205 Ala. 1, 87 So. 866; Commercial Finance Co. v. Cooper Bros.,196 Ala. 285, 71 So. 684; Birmingham R. L. P. Co. v. Jordan,170 Ala. 530, 54 So. 280.

The cases in other states seem to make such a distinction. See 134 A.L.R. 12; Page on Contracts, page 36. But this State has not accepted that view.

We think the demurrer to the replication should be sustained on grounds 3, 11 and 15; but not for reasons discussed in the opinion by Mr. Justice Livingston, supra. We concur in the result thus reached.

GARDNER, C. J., and THOMAS, BOULDIN, BROWN, FOSTER, and LAWSON, JJ., concur.