Brenard Mfg. Co. v. Pearson

• Decision Date: 05 November 1925
• Docket Number: 5 Div. 922
• Citation: 106 So. 171,213 Ala. 675
• Parties: BRENARD MFG. CO. v. PEARSON.
• Court: Alabama Supreme Court

106 So. 171

213 Ala. 675

BRENARD MFG. CO. v. PEARSON.

5 Div. 922

Supreme Court of Alabama

November 5, 1925

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

Action on notes by the Brenard Manufacturing Company against B.F Pearson. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Affirmed.

De Bardeleben & Russell, of Tuskegee, and Ball & Beckwith, of Montgomery, for appellant.

R.H Powell, of Tuskegee, for appellee.

SAYRE J.

Appellee's effort in plea 2 was to allege fraud in the procurement of the agreement which formed a part of the contract in consideration of which he executed the promissory notes in suit--fraud in that appellant's agent misrepresented the contents of the paper writing witnessing the agreement. The plea contains the elements of a good defense. Brenard Mfg. Co. v. Cannon, 209 Ala. 626, 96 So. 760. The plea had faults, it will not be denied. It was prolix to a degree it undertook to state the evidence; it was not as clear in any respect as it might have been; but not by demurrer or otherwise were its defects pointed out or distinctly stated as the statute requires. Code 1923,§ 9479.

Nor was there error in sustaining appellee's demurrers to the several replications filed by appellant. In the presence of the charge of fraud contained in plea 2, it was obviously futile to allege that appellant, the payee named in the notes in suit and a party to the alleged fraud in their procurement, was a bona fide holder without notice. True, the transaction in question was negotiated between appellee and an agent of appellant; but appellant, seeking to enforce the contract, is bound by what its agent did in its procurement. Nor is it of any consequence that the alleged agreement contained a stipulation that it could not be countermanded. Fraud vitiates everything, that stipulation, as well as the rest of the alleged contract.

There was no error in the ruling by which the court admitted the evidence in support of the plea. The fact that the agreement was in writing did not preclude the admission of parol evidence of the fraud or misrepresentation alleged in the plea. Brenard Mfg. Co. v. Jacobs, 202 Ala. 7, 79 So. 305.

The evidence was in conflict as to the misrepresentation alleged and appellant's requested affirmative charge was properly refused. It may be hard to believe that appellee was deceived as he alleges, but...