American Sales Book Co. v. Pope & Co.

PELHAM, J.

The appellee, defendant below, filed pleas numbered from 1 to 9, inclusive, to the plaintiff’s complaint, claiming on account and special contract in its different courts. The plaintiff filed demurrers to pleas 2, 3, 4, 5, 6, 7, 8, and 9, and the judgment entry set out in the record shows that the court sustained demurrers to pleas 2, 5, 6, 8, and 9, “and overruled as to all other pleas.” The judgment entry further shows that the defendant by leave of the court amended pleas 5, 6, 8, and 9 by filing separate paper writing setting out the amendments, and that the plaintiff refiled all demurrers theretofore filed to the original pleas to these pleas as amended, and the demurrers so filed to amended pleas 5, 6, 8, and 9, were overruled, and a judgment of the court is shown to that effect. It will be observed, however, that under the rulings of the Supreme Court the judgment entry does not show a sufficient judgment on the demurrers to pleas 3, 4, and 7 to support the assignments of error based on such rulings. — Hereford v. Combs, 126 Ala. 369, 28 South. 582; Bessemer L. & I. Co. v. Dubose, 125 Ala. 442, 28 South. 380; Speer v. Crowder, 32 South. 658; Dantzler v. Mill Co., 128 Ala. 410, 30 South. 674; Reese v. Fuller, 132 Ala. 282, 31 South. 601.

It is also shown by the judgment entry with respect to the ruling in this particular that after the court sustained the demurrers to pleas 2, 5, 6, 8, and 9, the defendant filed amendments to these pleas, and the plaintiff refiled demurrers to them but did not refile demurrers to pleas 3, 4, and 7. The judgment on the plaintiff’s demurrers filed to amended pleas 5, 6, 8 and 9 is a joint judgment, and no separate ruling seems to have been invoked or made, or judgment entered, on the demurrers to these pleas separately, so far as appears, or is shown by the judgment entry. While it is true, as contended by the appellee, that a reversal of the case would not he authorized on the joint judgment on the demurrers to these pleas because all of them are not subject to the demurrers interposed, it is also true that the case was tried to its 'conclusion on the theory of the issue made by the plaintiff’s replication as set out in the record, and this court will consider the case on the same theory. — Planters’ & Merchants’ Independent Packet Co. v. Webb, 156 Ala. 551, 46 South. 977, 16 Ann. Cas. 529; Gainer v. So. Ry. Co., 152 Ala. 186, 44 South. 652; Hardeman v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. (N. S.) 653; R. & D. R. Co. v. Farmer, 97 Ala. 141, 12 South. 86; Avery & Co. v. Turner, 3 Ala. App. 627, 57 South. 255.

Treating the case on this theory, the court was in error in refusing charge No. 4 requested by the plaintiff. It was also error to overrule the plaintiff’s motion for a new trial on the ground that the verdict for defendants was contrary to the evidence. The evidence without conflict showed that, while the defendants shipped back to the plaintiffs the recapitulator they retained supplies furnished with it under the contract to tbe value of about $20 and made no payment of any amount aside from tbe $5 paid to tbe agent when entering into tbé contract. One cannot exercise bis right of rescission because of misrepresentation and fraud practiced on bim, and'still retain part of tbe benefits of tbe contract and escape liability therefor. He must make restoration of wbat be bas received — put tbe other party in statu quo. He cannot both assail tbe contract and retain its fruits. — Rabbitte v. Ala. Gt. So. Ry. Co., 158 Ala. 431, 47 South. 573; Jones v. Anderson, 82 Ala. 302, 2 South. 911; Walker v. L. & N. R. R. Co., 111 Ala. 233, 29 South. 358; Young v. Arntze, 86 Ala. 116, 5 South. 253; Hoyt v. Turney, 84 Ala. 523, 4 South. 658; Wilcox v. San Jose Co., 113 Ala. 519, 21 South. 376, 59 Am. St. Rep. 135; Weliden v. Witt, 145 Ala. 605, 40 South. 126; Royal v. Goss, 154 Ala. 117, 45 South. 231; Harrison v. Ry. Co., 144 Ala. 246, 40 South. 394, 6 Ann. Cas. 804.

Under tbe issues and theory upon which the case was tried, the verdict for the defendants was not authorized by the evidence, and the plaintiffs’ motion to set aside the verdict should have been granted.

For the errors pointed out the case must be reversed.

Eeversed and remanded.