Clayton v. Glasscock, 7 Div. 943.

• Decision Date: 27 March 1930
• Docket Number: 7 Div. 943.
• Parties: CLAYTON v. GLASSCOCK.
• Court: Alabama Supreme Court

127 So. 538

221 Ala. 3

CLAYTON v. GLASSCOCK.

7 Div. 943.

Supreme Court of Alabama

March 27, 1930

Appeal from DeKalb County Court; E. M. Baker, Judge.

Action by Hettie Glasscock against O. W. Clayton, individually, and doing business in the name of Lookout Valley Infirmary. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

J Valdor Curtis and Haralson & Son, all of Ft. Payne, for appellant.

Chas J. Scott, of Ft. Payne, for appellee.

ANDERSON C.J.

It has been said that misrepresentation or concealment as to matter of law cannot constitute remedial fraud, because everyone is presumed to know the law, and therefore cannot in legal contemplation be deceived by erroneous statements of law, and such representations are ordinarily regarded as mere expressions of opinion on which the hearer has no right to rely. Further, it has been held that a charge of fraud cannot be predicated on an honest error in a statement of the law. But misrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood as where they amounted to an implied assertion that facts existed which justified the conclusion of law expressed and where, in addition to misrepresentations of law, there were also actionable misrepresentations of fact recovery may be had. 26 C.J. 1207.

Count 2 of the complaint falls quite aptly under the influence of Myers v. Lowery, 46 Cal.App. 682, 189 P. 793, and Keer v. Shurtleff, 218 Mass. 167, 105 N.E. 871 wherein it was held that misrepresentations quite similar to the ones here charged were actionable. The trial court did not err in overruling the demurrer to count 2 of the complaint.

While some confusion has arisen in the application of sections 5676, 5677, and 8049 of the Code of 1923, in cases of deceit and fraud and which we attempted to reconcile in the case of Cartwright v. Braly, 218 Ala. 49, 117 So. 477, the present complaint avoids the necessity of drawing distinctions or explanations as to the field of operation of said sections respectively. It charges, in specific terms, that the representations made by the defendant "were made by him with full knowledge on his part that they were not true, and were made for the purpose of deceiving the plaintiff and did deceive her to her damages as aforesaid."

Charge 2, requested by the defendant, should have been given. Likewise, the trial court erred in reading certain parts of the statute to the jury which were inapt, as they did not apply to the issue in the...