Drennen Motor Car Co. v. Smith

• Decision Date: 11 April 1935
• Docket Number: 6 Div. 696
• Citation: 160 So. 761,230 Ala. 275
• Parties: DRENNEN MOTOR CAR CO. v. SMITH.
• Court: Alabama Supreme Court

160 So. 761

230 Ala. 275

DRENNEN MOTOR CAR CO. v. SMITH.

6 Div. 696

Supreme Court of Alabama

April 11, 1935

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action in assumpsit by Arnold Smith, a minor, suing by his next friend, J.E. Massey, against the Drennen Motor Car Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Mullins & Deramus, of Birmingham, for appellant.

Harsh Harsh & Hare and J.T. Roach, all of Birmingham, for appellee.

FOSTER Justice.

This action was tried on two common counts: (1) On account; (2) for money had and received. Both allege that plaintiff was a minor and state the due date to be May 25, 1932. They do not otherwise state the circumstances out of which the claim is made.

Defendant filed several pleas in addition to the general issue. The only assignments of error made by appellant are that the court erred in sustaining demurrer to pleas 6, 7, 8, and 10. Those pleas are denominated by their prayer to be pleas of set-off, and are all in deceit for damages. They allege that the deceit consisted in the misrepresentation of plaintiff's age when he purchased an automobile from defendant. They do not allege or show that they refer to the same transaction as that which is the basis of plaintiff's claim. They are therefore to be treated as pleas of set-off and not recoupment. Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387; Standard Sanitary Mfg. Co. v. Benson Hardware Co., 225 Ala. 412, 143 So. 570; Craft v. Standard Accident Ins. Co., 220 Ala. 6, 123 So. 271.

A plea of set-off which sounds in damages merely is not available. Sections 10172, 10173, Code. Such a plea claiming damages for deceit is within this rule of prohibition. Fidelity-Phenix Fire Ins. Co. v. Murphy, supra. Ground 5 of the demurrer presents that question. That situation is sufficient to justify the ruling, and the circuit court will not be put in error for that reason.

We judge from the evidence, though not proper for consideration in passing on the sufficiency of the pleas, that they do relate to the purchase by plaintiff of an automobile for the price of which, to the extent that he paid it, plaintiff is suing to recover on a disaffirmance and rescission by him because of his minority. It may be that the argument is thus omitted because of a consciousness that the pleas do relate to the transaction of which plaintiff complains.

Before discussing the chief point argued, we will consider others urged by appellee in support of the ruling. It is not necessary in Alabama, since or before the adoption of what is section 8049, Code, in a deceit count or pleas of set-off to allege that the misrepresentation which is the basis of the deceit was made with the intent to deceive, or with knowledge of its falsity, when the other elements exist. Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Reliance Life Ins. Co. v. Sneed, 217 Ala. 669, 117 So. 307; Gulf Electric Co. v. Fried, 218 Ala. 684, 119 So. 685; Coleman v. Night Commander Lighting Co., 218 Ala 196, 118 So. 377.

Pleas 6, 7, and 8 contain the allegations that there was a material representation as to plaintiff's age, intended to induce defendant to sell plaintiff an automobile; that defendant acted in reliance upon such representation; that it was false and was known by plaintiff to be false. In the case of King v. Livingston Mfg. Co., 180 Ala. 118, 60 So. 143, it was held that plaintiff must have intended that the representation be acted on. We have adhered to that as a requirement. Lovett v. Funderburk, 224 Ala. 634, 141 So. 557. But that does not mean that plaintiff must know that the representation is false or that he must intend to defraud.

Plea 10 does not allege that plaintiff made the representation to induce defendant to act, or that defendant relied or acted on it. It is not sufficient merely to allege that "plaintiff wrongfully and by fraudulent representations obtained from the defendant" the car, to the injury of defendant. The facts on which the fraud is predicated must be alleged as illustrated in pleas 6, 7, and 8. The allegation of negligence does not cure the defect. Plea 10 is defective on that account.

Such counterclaim as is set up in those pleas is not available under the general issue to the common counts. George v. Roberts, 186 Ala. 521, 65 So. 345; Bixby-Theisen Co. v. Evans, 186 Ala. 507, 65 So. 81; Wadsworth v. First National Bank, 124 Ala. 440, 27 So. 460.

It is also insisted that those pleas do not allege that defendant has been damaged in any material respect by the misrepresentations, in that they do not show that the depreciation in value affected defendant.

True injury, not merely nominal, is an element of deceit. Lowery v. Mutual Loan Society, 202 Ala. 51, 79 So. 389; Moore v. Westinghouse Electric & Manufacturing Co., 112 Ala. 452, 20 So. 487; Wall v. Graham, 192 Ala. 396, 68 So. 298. But we do not find any ground of demurrer addressed to that defect. It is not therefore considered. And though plaintiff still was a minor when he disaffirmed and began this suit, no question is here presented as to his right to do so during minority. See 31 Corpus Juris, 1067.

We now reach the point chiefly urged and argued by counsel for both parties: Is a minor liable in an action or cross-action for deceit in misrepresenting his age as an inducement to the purchase of an automobile, which he has a right...