Adams Hardware Co. v. Wimbish

CourtSupreme Court of Alabama
Citation201 Ala. 548,78 So. 902
Docket Number5 Div. 696
Decision Date11 April 1918

Appeal from Circuit Court, Chambers County; S.L. Brewer, Judge.

Detinue by the Adams Hardware Company against H.A. Wimbish for certain engines and machinery. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

See also, 78 So. 901.

Strother & Hines, of Lafayette, for appellant.

N.D Denson & Sons, of Opelika, for appellee.


While it is elementary law that parol evidence is not admissible to alter, change, or enlarge a written contract, and that previous agreements relating to the contract, when reduced to writing, become merged into the writing, it is also a well-established legal principle that when a contract is executed by one in reliance upon false representation as to its contents, it is not binding upon the party deceived, if he elects to avoid it, and it matters not that he could read, and had an opportunity to read the contract before signing same, if he did not read it, and acted upon the representations of the other. Commercial Co. v. Cooper Bros., 196 Ala. 285, 71 So. 684. "A party asserting facts cannot complain that the other took him at his word." Shahan v. Brown, 167 Ala. 534, 52 So. 737; Moline Jewelry Co. v. Crew, 171 Ala. 415 55 So. 144; Folmar v. Siler, 132 Ala. 299, 31 So. 719.

It is also settled that, when the execution of the contract is procured by fraud or misrepresentation, it is competent to show the true contract. Cooper Bros. Case, supra; Tillis v. Austin, 117 Ala. 262, 22 So. 975; Dunham Lumber Co. v. Holt, 123 Ala. 336, 26 So. 663. There was proof from which the jury could infer that the contract signed by the defendant was represented to him by the vendor's agent as containing certain warranties that were really not embraced in same; and, if this was true, the defendant had the right to show what they were, and what was the real contract, and in doing this could show the negotiations between the parties and the agreement reached, and the rulings of the trial court upon the evidence in this respect were free from reversible error.

The defendant had the right to show the difference in the value of the articles he contracted to buy and the ones he actually received, and it was competent to show the condition and value of the mill he received, and its grinding capacity, and whether or not certain defects affected its usefulness and grinding capacity, and the extent to which it bore upon its value, as compared with such a one as the defendant contracted to buy.

The defendant's evidence fully justified the...

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13 cases
  • Dowling-Martin Grocery Co. v. J.C. Lysle Milling Co., 4 Div. 808
    • United States
    • Supreme Court of Alabama
    • November 27, 1919
    ...74 So. 960, 965; People's Sav. Bank v. Jordan, 76 So. 442; Ala. Power Co. v. Hamilton, 77 So. 356, 363; Adams Hardware Co. v. Wimbish, 78 So. 902; Lauderdale Power Co. v. Perry, 80 So. 476. Having decided the question of merit presented by appropriate assignments of error and argument of co......
  • Burnett & Bean v. Miller, 5 Div. 783
    • United States
    • Supreme Court of Alabama
    • April 21, 1921
    ...plaintiffs duly excepted. The objection to the latter question was general, and the ruling is not for review. Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 901. However, the question called for competent evidence. Finding no reversible error, the judgment of the circuit court is affirmed.......
  • Alabama Power Co. v. Hall, 3 Div. 693
    • United States
    • Supreme Court of Alabama
    • January 22, 1925 On this issue of fact, heard in part on oral evidence, the finding of the court will not be disturbed. Adams Hdwe. Co. v. Wimbish, 201 Ala. 548, 78 So. 902. In avoidance of this finding, the defendant takes the point that the ground of the motion is sustained upon proof that plaintiff ......
  • Willcutt v. Union Oil Co. of California
    • United States
    • Supreme Court of Alabama
    • May 27, 1983
    ...Cannon, 209 Ala. 626, 96 So. 760 (1923); Illinois Cent. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866 (1920); Adams Hardware Co. v. Wimbish, 201 Ala. 548, 78 So. 902 (1918); Gillespie v. Hester, 160 Ala. 444, 49 So. 580 (1909); Leonard v. Roebuck, 152 Ala. 312, 44 So. 390 Page 1221 The Willcut......
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