J. B. Colt Co. v. Price , 210 Ala. 189 ( 1923 )

Plaintiff, appellant, sued to recover damages for the breach of a written agreement whereby plaintiff undertook to furnish apparatus for lighting defendant's dwelling, for which defendant agreed to pay $239.60. The agreement is exhibited with counts 1, 2, and 3. Count 4 is the common count for the price of goods, wares, and merchandise.

Demurrer to defendant's plea 5 was overruled, and this ruling is assigned for error. It is urged that the plea is bad for duplicity, for that it combines two separate and distinct defenses. Sloss-Sheffield Co. v. Smith, 166 Ala. 443, 52 So. 38; Berlin Mach. Works v. Ewart, 184 Ala. 272, 63 So. 567. In inverted order of allegation the plea, while admitting by not denying the receipt and possession of the apparatus, avoids the contract stated in the complaint by alleging the procurement of its execution by fraud, alleges the true contract — among other things a warranty of the material, workmanship, and durability of the apparatus — its breach, defendant's rescission, in effect, on that account, and that defendant holds the property subject to plaintiff's disposal. The plea is a plea of rescission and presents a single defense. Fraud is sufficiently alleged. Moline Jewelry Co. v. Crew,171 Ala. 415, 55 So. 144; Brenard Mfg. Co. v. Cannon, 209 Ala. 626,96 So. 760. That defendant had an opportunity to search the paper writing tendered to him for signature, but neglected to do so, does not estop him to allege the deceit practiced in the procurement of its execution. Leonard v. Roebuck, 152 Ala. 312,44 So. 390. And plaintiff, electing to stand by the contract made by its agent, is bound by his representations as to its contents. Williamson v. Tyson, 105 Ala. 653, 17 So. 336; Philips Buttorff Co. v. Wild, 144 Ala. 545, 39 So. 359.

"Where statements are made as of fact, especially where they concern matters which may be assumed to be within the knowledge of the party making them and where there is nothing to arouse suspicion, the party to whom they are made has a right to rely upon them without instituting an independent investigation." Tillis v. Smith Sons Lumber Co., 188 Ala. 132, 65 So. 1017.

Nor was the representation alleged a statement of mere opinion. It was a statement of fact; or, if by any construction it may be taken as an expression of opinion as to the legal effect of the writing, it was, in the circumstances alleged, none the less an affirmation of fact, that is, of the fact of a bona fide opinion, and, if it was falsely and fraudulently made "to mislead or cheat another, to abuse his confidence, or to blind his judgment [and this is generally a question of fact for the jury] it is in law and morals as reprehensible as if any other fact were affirmed for the like purpose." Tillis v. Smith Sons Lumber Co., supra. In this connection appellant seems to rely on Fulton v. Sword Medicine Co., 145 Ala. 331,40 So. 393, as holding that appellee was bound by the written instrument signed by him; but in that case there was no charge that the buyer's signature had been procured by fraud. Like considerations suffice to dispose of the objections to pleas 6 and 7.

It appears that the court sustained defendant's objections to the testimony sought by the questions shown in assignments of error 8 to 10 1/2, both inclusive, on the ground that there was better evidence of the matters sought to be proved, original writings, which should have been produced or accounted for. Such objections went to the legality of the evidence offered and it was properly excluded notwithstanding defendant's failure to specify grounds of objection when the questions were asked. Kramer v. Compton, 166 Ala. 216, 52 So. 351.

Several assignments of error proceed upon the theory that the paper writing signed by appellee became the sole memorial of the contract between the parties, and therefore that evidence should not have been admitted to show the oral agreement between the parties; but of course this argument depends upon appellant's contention that there was no sufficient plea of fraud in the procurement of the writing, and this contention, as we have seen, cannot be sustained. There were sufficient pleas alleging fraud, and they found substantial support in the evidence.

Plaintiff's request for the general affirmative charge was properly refused; there was evidence tending to support defendant's special pleas. Nor can we affirm error of the action of the court in overruling plaintiff's motion for a new trial. Defendant's evidence tended to support every element of his pleaded defense, offered, if believed, satisfactory explanation of appellee's delay in notifying appellant of his rejection of the apparatus, and that thereafter appellee would hold it subject to appellant's order; nor can we say that the jury were clearly wrong in giving credence to appellant's testimony, as very clearly they did.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.