Comer v. Franklin

• Decision Date: 24 November 1910
• Citation: 169 Ala. 573,53 So. 797
• Parties: COMER v. FRANKLIN.
• Court: Alabama Supreme Court

53 So. 797

169 Ala. 573

COMER v. FRANKLIN.

Supreme Court of Alabama

November 24, 1910

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Action by E. R. Franklin against N. B. Comer. From a judgment sustaining demurrers to certain pleas, defendant appeals. Affirmed.

Hill Hill & Whiting, for appellant.

Tyson Wilson & Martin, for appellee.

SAYRE J.

Plaintiff (appellee) sued for the recovery of a sum of money which he had paid to defendant on a contract for the purchase of the furnishings then and since in the Capitola Hotel, which defendant had been keeping, and which, along with its furnishings, went into the possession of the plaintiff upon the agreement of sale. The allegation was that the sale had been induced by defendant's false representation that he owned the subject-matter of the contract of sale, whereas in fact a large part of the furnishings belonged to a third person. The complaint, reduced at last to count 7a, avers that in the month of July, 1908, plaintiff learned of the third person's ownership, and that thereupon within a reasonable time he "offered to rescind and to disaffirm said contract, and notified the defendant of his intention to rescind said contract, and then and there offered to deliver to said defendant all of the defendant's said goods wares, and furniture so sold to him by defendant, and did thereupon demand of the defendant that he repay to him the said sum of $400 theretofore paid by plaintiff, which said defendant refused to do; and plaintiff avers that, since the said offer to rescind said contract as aforesaid, defendant's said goods, wares, and furniture have been at all times up to the bringing of this suit in the said Capitola Hotel, subject to the order of the defendant."

Pleas A and B reiterate the contract and plaintiff's payment of money thereon, and alike proceed: "Thereafter the plaintiff, on, to wit, July 20, 1908, discovered and learned that the defendant did not own all of said goods, wares, and furniture mentioned in said contract and agreed to be sold as aforesaid, and was not the owner of the following goods, wares, and furniture mentioned in said contract, to wit" (setting out those articles which the defendant was alleged not to own). Plea A concludes: "And plaintiff, with full knowledge of said facts, continued to hold and to keep all of said property mentioned in said contract, and exercise dominion over the same as his own, and continued so to do up to, to wit, May 5, 1909, the time of the bringing of this suit." Plea B concludes: "And the defendant further avers that the plaintiff, with full knowledge of said facts, and knowing that said goods, wares, and furniture herein last above described were not the property of the defendant, continued to hold and to keep all of said property described in said contract, which said property was delivered to plaintiff by the defendant at the time of the making of said contract, and the plaintiff exercised dominion over the said property, and used the same as his own, and continued to do so up to, to wit, May 5, 1909, the time of the bringing of this suit, all during which said time the plaintiff used said property in the business that he was then conducting, to wit, a hotel business, at the said building known as the 'Capitola Hotel.' And the defendant further avers a large amount of said property was perishable and easily destroyed, or rendered greatly less valuable by the use thereof; yet, notwithstanding, plaintiff continued to use said property as if it was his own up to the time of, to wit, the bringing of this suit. And the defendant further avers that before the bringing of this suit the plaintiff did deliver all of said property mentioned in said contract that had not been destroyed or lost while in the possession of plaintiff to another person, with full power and authority to use the same as plaintiff had been doing, which said other person, whose name is to plaintiff (defendant?) unknown, held said property, and used the same as his own, exercising dominion over the same."

It appears of record that demurrers to these pleas were sustained, but the grounds of demurrer are not shown. It must therefore be presumed that their defects, if any, were pointed out ore tenus. Central...