Brenard Mfg. Co. v. Cannon

• Decision Date: 10 May 1923
• Docket Number: 6 Div. 841.
• Citation: 96 So. 760,209 Ala. 626
• Parties: BRENARD MFG. CO. v. CANNON.
• Court: Alabama Supreme Court

96 So. 760

209 Ala. 626

BRENARD MFG. CO. v. CANNON.

6 Div. 841.

Supreme Court of Alabama

May 10, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Fayette County; J. J. Curtis, Judge.

Action on the common counts, for goods and wares sold, etc., by the Brenard Manufacturing Company against Theron Cannon. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

Dodson & Butts, of Tuscaloosa, for appellant.

S. T Wright, of Fayette, for appellee.

SAYRE J.

The substance of plea 3 is that plaintiff's agent when negotiating a sale of the goods, the price of which plaintiff seeks to recover, falsely and fraudulently in material particulars, which are set out, misrepresented the contents of the paper writing signed by defendant as evidence of the contract of sale and its several stipulations; that defendant relying upon such representations signed the contract without knowing the contents; and that, upon receiving the goods and discovering the fraud, defendant rescinded the contract and offered to return the goods, which offer being refused defendant has since held the goods as bailee for plaintiff. This was a good plea. Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 So. 144. Nor does the fact that defendant had an opportunity to search the contract, but neglected to do so, estop him to deny any 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, was bound by his representations in making the contract. Philips &amp Buttorff Co. v. Wild Bros., 144 Ala. 545, 39 So. 359.

The evidence admitted by the court over plaintiff's objection tended to sustain the allegations of plea 3 and was admitted without error. It may be that a part of the answer of the witness Dovie Johnson, made the subject of the third assignment of error, was open to the objection that the witness was stating a mere conclusion, but no objection was taken on that ground, nor did plaintiff in its motion to exclude make any effort to discriminate between the competent and incompetent parts of the answer, parts of which were certainly unobjectionable. The objection was addressed to the answer as a whole.

The bill of exceptions does not purport to contain all the evidence, and we cannot intelligently review the action of the trial court in...