Berman Bros. Iron & Metal Co. v. State Savings & Loan Co., 6 Div. 679.

• Decision Date: 23 October 1930
• Docket Number: 6 Div. 679.
• Citation: 222 Ala. 9,130 So. 554
• Court: Alabama Supreme Court
• Parties: BERMAN BROS. IRON & METAL CO. v. STATE SAVINGS & LOAN CO.

130 So. 554

222 Ala. 9

BERMAN BROS. IRON & METAL CO. v. STATE SAVINGS & LOAN CO.

6 Div. 679.

Supreme Court of Alabama

October 23, 1930

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by the Berman Bros. Iron & Metal Company against the State Savings & Loan Company. Plaintiff takes a nonsuit, and appeals from adverse rulings on pleading. Transferred from Court of Appeals.

Affirmed.

Arlie Barber, of Birmingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

BOULDIN J.

Whether count 3 be regarded as ex contractu, a claim for money paid in on a stock subscription with the privilege of withdrawal at any time with interest (in effect an option to declare it merely a loan), or be regarded as ex delicto, for the return of money obtained by misrepresentation of the incidents of such stock in the matter of withdrawal rights, it seeks, in either event, to recover money in the hands of defendant which ex aequo et bono belongs to the plaintiff.

Count 4 seeks to recover the same money, alleged to have been paid in as the result of deceit, and which defendant refused to return after rescission and demand on the part of plaintiff.

Under the common count for money had and received, plaintiff could recover on the same facts which would support a recovery under either count 3 or 4.

Where apt counts remain in the complaint imposing no heavier burden on the plaintiff than those stricken by demurrer, error, if any, in such ruling on demurrer, will not warrant taking a nonsuit and appeal because of such adverse ruling. Kennedy v. Lyric Theatre Co., 213 Ala. 153, 104 So 274. Indeed, such error would be held harmless on appeal from final judgment. Anderson v. Foshee, 216 Ala. 78, 112 So. 356.

Plea special No. 3, setting up defendant's version of the transaction, is a good plea to the common counts. It is equivalent to a denial of the cause of action. It shows the subscription contract in writing called for the payment of a "cash membership fee of $5.00 per share," aggregating $500; that, upon payment of same, a certificate was issued to plaintiff reciting that payment of the membership fee was not payment on the stock, reciting that same was subject to the by-laws of the company, and reciting that the terms and conditions of the shares were defined in the by-laws.

The plea further avers that under the by-laws the membership fee was not withdrawable, but belonged to the company as a surplus fund; that, after this transaction, plaintiff made payments on the stock; and that all payments except the membership fee have been withdrawn prior to the bringing of the suit.

Plaintiff's special replication to this plea must...