Commercial Finance Co. v. Cooper Bros.
| Decision Date | 13 April 1916 |
| Docket Number | 7 Div. 789 |
| Citation | 71 So. 684,196 Ala. 285 |
| Parties | COMMERCIAL FINANCE CO. v. COOPER BROS. |
| Court | Alabama Supreme Court |
Appeal from City Court of Talladega; Marion H. Sims, Judge.
Assumpsit by the Commercial Finance Company against Cooper Bros., a partnership. Judgment for defendants, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.
The action was for goods, wares, and merchandise sold under a contract in writing for the sale of certain chinaware. The defendants set up the failure of consideration, in that plaintiff's agent represented the assortment to contain certain articles which are set out in the plea, but that plaintiff did not and has not complied with the contract, but has shipped defendants other and wholly different articles of property from that purchased, and that defendants had refused said crockery, and notified plaintiff that same was held subject to its order. Other pleas set up the same statement of facts with the additional allegation that the crockery had been returned. Others set up false and fraudulent representation by plaintiff's agent Brown inducing the signing of the contract without reading it, on the belief that said representations are true, and that upon the discovery of the fraud the contract was promptly rescinded and the property offered to be returned. Plaintiff set up by way of replication that defendants agreed in said contract that there was no other contract of any kind, verbal or written, except the one sued on, and that defendants agreed in said contract to accept the goods as their property when shipment was made.
Graves Embry, of Talladega, for appellant.
Carl C Smith, of Talladega, for appellees.
It is no doubt, true that W.E. Cooper had no right to testify as to what articles he bought if the contract contained the true articles and was such a contract as was binding upon Cooper Bros.; but the defendants' evidence shows that the contract signed was not the one made by the defendants, and was signed upon the misrepresentation of the salesman Brown therefore the witness W.E. Cooper had the right to tell what articles he purchased, and Brown represented to him that the contract covered said articles instead of the ones shipped. A contract executed by one in reliance upon false representations as to its contents is not binding upon the party deceived if he elects to avoid it, although he...
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...Milling Co. v. Mixon, 243 Ala. 309, 9 So.2d 911; Illinois Central R. Co. v. Johnston, 205 Ala. 1, 87 So. 866; Commercial Finance Co. v. Cooper Bros., 196 Ala. 285, 71 So. 684; Birmingham R. L. & P. Co. v. Jordan, 170 Ala. 530, 54 So. 'The cases in other states seem to make such a distinctio......
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