Drinkard v. Embalmers Supply Co., 8 Div. 213.
| Decision Date | 30 June 1943 |
| Docket Number | 8 Div. 213. |
| Parties | DRINKARD et al. v. EMBALMERS SUPPLY CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Aug. 7, 1943.
Appeal from Circuit Court, Morgan County; Seybourn H. Lynne Judge.
Demurrer to replications contained these grounds among others:
Norman W. Harris, of Decatur, for appellants.
Russell W. Lynne, of Decatur, for appellee.
The appeal is upon the record proper, and presents but a single question, the propriety of the trial court's action in overruling defendants' demurrers to plaintiff's replication numbered 3 to defendants' plea numbered 4.
The suit is against E. L. Drinkard, B. T. Howell, and William H Drinkard, Jr., doing business under the name and style of the Drinkard-Howell Funeral Company (or Home). Recovery against William H. Drinkard, Jr., was denied, and a judgment discharging him was entered.
The complaint consists of two counts. Count one claims on account, and count two claims the purchase price of certain embalming fluid and equipment alleged to have been sold by plaintiff to defendants under and by virtue of the terms of a written contract, a copy of which contract is attached to and made a part of count two.
Each defendant filed a special plea numbered 4, alleging that plaintiff's agent procured the execution of the contract sued on by fraudulently misrepresenting its nature and contents to defendant Howell. The facts alleged in pleas 4 were that plaintiff's agent told Howell that E. L Drinkard had made a contract to buy fifty cases of embalming fluid from plaintiff for Drinkard-Howell Funeral Home, and that Drinkard wanted Howell to order out for shipment so much of said fluid as was then needed, and that the written instrument signed by Howell was merely an order for the shipment out of ten cases of the fluid, which Drinkard had contracted to buy. The pleas further alleged that these representations were untrue, and that in fact Drinkard had not made any such contract; that such false representations were made with actual intent to deceive, were relied upon by and did deceive Howell.
Plaintiff's third replication to defendants' plea 4 alleges, in substance, that upon receipt of said order-contract signed by defendant Howell, plaintiff acknowledged same by letter addressed to defendants, and, within a reasonable time, shipped the embalming fluid to defendants; that sometime thereafter plaintiff received a letter from E. L. Drinkard stating that some one had shipped defendants the embalming fluid in question, but defendants could not dispose of same on account of not knowing who bought it, and defendants had not received an inventory, and requested to be advised. That plaintiff, upon receipt of said letter, advised defendants, by letter which is set out in the replication and which states in substance, that the embalming fluid was shipped by reason of the contract signed by Howell. The replication further alleges that, "Defendants, after being fully advised of the matters as set forth in said letter, retained the said fluid and did not return same to plaintiff."
Defendants' demurrers to the replication raise the question as to whether or not there is any duty upon the partnership to return merchandise shipped to it by virtue of a contract for the purchase of such merchandise where the contract was procured by fraud in the factum, as distinguished from fraud in the inducement.
In this connection it is important to keep in mind the nature or class of fraud which plaintiff's replication purports to answer. The allegations are that plaintiff's agent told Howell that the instrument which he signed, and which is the foundation of the suit, was merely an order for the shipment out of ten cases of embalming fluid, when, as a matter of fact, the instrument was itself a contract for the purchase of fifty cases of fluid. The allegations are to the effect that Howell signed an instrument he did not know he was signing, and one that he never intended to sign. Clearly, such misrepresentations are of the class which the authorities term "fraud in the factum," or "fraud in the execution," as distinguished from "fraud in the treaty" or "fraud in the inducement."
The rule relative to the effect of fraud in the factum is stated in the case of Burroughs v. Pacific Guano Co., 81 Ala. 255, 1 So. 212, 213, thus:
* * *
"If the instrument sued on was void for fraud in its execution as alleged in those pleas, it was of no more binding efficacy on the defendant than if it had no existence, or were a piece of waste paper." See, also, Beck & Pauli...
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