Bynum v. Southern Building & Loan Ass'n

Decision Date08 October 1931
Docket Number6 Div. 899.
Citation223 Ala. 392,137 So. 21
CourtAlabama Supreme Court
PartiesBYNUM v. SOUTHERN BUILDING & LOAN ASS'N.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action in assumpsit by Jacob Bynum against the Southern Building &amp Loan Association. From a judgment granting defendant's motion for a new trial, plaintiff appeals.

Affirmed.

Coleman Coleman, Spain & Stewart and H. H. Grooms, all of Birmingham for appellant.

Lange, Simpson & Brantley and Reid B. Barnes, all of Birmingham, for appellee.

GARDNER J.

Plaintiff sued defendant on the common counts for money had and received, and recovered a judgment, which was set aside by the court on defendant's motion for new trial. From the order granting the motion for a new trial, plaintiff has prosecuted this appeal.

The action is founded upon the doctrine of rescission (Day v. Broyles, 222 Ala. 508, 133 So. 269), which in turn, in this particular instance, is rested upon alleged fraudulent representations of defendant's agents in the sale of certain stock of defendant corporation closely akin to the fraud charged in the recent case of Southern Building & Loan Association v. Hughs, 222 Ala. 648, 133 So. 685, details of which need not be here reiterated.

That the verdict was contrary to the preponderance of the evidence constitutes grounds 1 and 2 of the motion for a new trial, and defendant's counsel strenuously insist this ruling of the court is due to be sustained upon a consideration thereof. We are persuaded to the correctness of this view. "The rule *** is that 'the latitude allowed to the trial court's discretion in passing on motions for new trial is such that this court will not reverse a judgment granting the motion unless the evidence plainly and palpably supports the verdict.' *** Where the evidence is conflicting, as in this case, and a new trial is granted, perhaps a more accurate statement of the rule would be that this court will not reverse the judgment unless the evidence is plainly and palpably in favor of the verdict. *** This rule is founded partly upon the fact that the trial judge's opportunity for pronouncing upon the weight and convincing power of the testimony is better than ours." Smith v. Tombigbee & Northern Rwy. Co., 141 Ala. 332, 37 So. 389. See, also, Cobb v. Malone, 92 Ala. 630, 9 So. 738; Nobles v. Bank of Eclectic, 217 Ala. 124, 115 So. 13; Birmingham News Co. v. Lester, 222 Ala. 503, 133 So. 270.

To sustain the present action of money had and received, the burden was upon plaintiff, not only to establish the fraudulent representations in the sale of the stock, but that he rescinded the transaction with reasonable promptness after discovery of the fraud and returned or offered to return to defendant that which he had received as consideration therefor. Americanized Finance Corp. v. Yarbrough (Ala. Sup.) 135 So. 448; So. States Fire & Casualty Ins. Co. v. De Long, 178 Ala. 110, 59 So. 61; Young v. Arntze & Bros., 86 Ala. 116, 5 So. 253, 256; Berman Bros. Iron & Metal Co. v. State Savings & Loan Co., 222 Ala. 9, 130 So. 554; Comer v. Franklin, 169 Ala. 573, 53 So. 797; Fairbanks, Morse & Co. v. Dees, 220 Ala. 41, 126 So. 624.

The transaction complained of in the instant case occurred in November, 1927, and this suit was begun June 11, 1929. Plaintiff insists he discovered he had not been given capital stock certificates, which he understood he was purchasing only a few days preceding the filing of this suit, at which time he demanded a refund of the money paid and offered to return the surplus certificates he had been given.

But the defendant's evidence was to the contrary, and its secretary testified that the month following the sale, that is, in December, 1927, plaintiff came to the office and the entire transaction was discussed and it was explained to plaintiff fully what he had bought and the obligation assumed as to the capital stock, and defendant offered correspondence which it insists tends somewhat to support this insistence though the authenticity of the letter is by plaintiff denied. Plaintiff likewise denied signing any subscription card, and insisted also no such conversation with the secretary...

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12 cases
  • Bankers' Mortg. Bond Co. v. Rosenthal
    • United States
    • Alabama Supreme Court
    • October 27, 1932
    ... ... Johnston, ... 211 Ala. 99, 99 So. 839; Southern Ry. Co. v. Cates, ... 211 Ala. 282, 100 So. 356; Sovereign ... 22. So, also, of the dividends. Southern Building & Loan ... Ass'n v. Bartee, 224 Ala. 276, 139 So. 294; ... 508, 133 So. 269, and authorities ... See, also, Bynum v. Southern Building & Loan ... Ass'n, 223 Ala. 392, 137 ... ...
  • Johns Hopkins University v. Hutton
    • United States
    • U.S. District Court — District of Maryland
    • March 29, 1972
    ...in the context of an objective, reasonable-man standard, upon the would-be rescinder. See, e. g., Bynum v. Southern Building & Loan Assn., 223 Ala. 392, 137 So. 21, 23 (1931), stating: "Our cases are to the effect that one electing to rescind a contract for fraud must exercise the right wit......
  • Mutual Building & Loan Ass'n v. Watson
    • United States
    • Alabama Supreme Court
    • April 27, 1933
    ... ... other alleged fraudulent representations closely akin to ... those found in Bynum v. So. Bldg. & Loan Ass'n, ... 223 Ala. 392, 137 So. 21, Southern Bldg. & Loan Ass'n ... v ... ...
  • Southern Building & Loan Ass'n v. Dinsmore
    • United States
    • Alabama Supreme Court
    • October 6, 1932
    ... ... Co. v. Houppert & Worcester, 104 Ala. 503, ... 16 So. 522, 53 Am. St. Rep. 77; Cartwright v. Braly, ... 218 Ala. 49, 117 So. 477; Bynum v. Southern Building & ... Loan Ass'n, 223 Ala. 392, 137 So. 21. The ... affirmative charge was properly refused ... Punitive ... ...
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