Fagan Peel Co. v. Harrison Co.
| Decision Date | 28 May 1918 |
| Docket Number | 2 Div. 177 |
| Citation | 79 So. 144,16 Ala.App. 470 |
| Parties | FAGAN PEEL CO. v. HARRISON CO., Limited. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.
Action in assumpsit and deceit by the Harrison Company, Limited against the Fagan Peel Company, a corporation, for fraud in the sale of an automobile. Judgment for plaintiff, and defendant appeals. Affirmed.
Roach & Ward, of Mobile, and T.J. Hollis, of Butler, for appellant.
Ben F Elmore and Wm. F. Herbert, both of Demopolis, for appellee.
The plaintiff contends, and his evidence tends to support his contention, that he puchased from the defendant a new Maxwell car; that it was represented to him by the defendant or its duly authorized agent as such; that, relying upon this statement, he paid the defendant the price agreed upon, which was $700, either in money or in property which was agreed at the time to be worth that much, and which the defendant accepted as $700; that the car delivered was not a new car but was a used car and damaged; that, when plaintiff discovered the deceit, he rescinded the trade, so notified the defendant, and demanded the return of his property or money, and defendant refused to return same. The defendant denied the false representations, and denied that it had ever had any dealings with plaintiff at all, but claimed that it was a Mississippi corporation, not authorized to do business in this state, and that whatever trade had been made or transaction had with plaintiff was by one R.W. Fagan, the defendant's president. Fagan, the president, so testified, but further admitted that he was in the active management of defendant's business, that of selling automobiles; that the car sold and delivered to plaintiff was the property of defendant before he sold it to plaintiff; that the defendant company having no license to do business in this state and not having complied with the statutes of this state, in regard to license, that he carried on this business over in Alabama as an individual, and that he was responsible to the corporation for the business; that he simply paid the money over to it when the sales were made; that in the sale of this car the proceeds were turned into defendant's business; that he did not tell the plaintiff that he was doing business individually or for the corporation. Under the evidence, it was a question for the jury to say whether the representations were made; if so, where they false, and whether or not R.W. Fagan was acting for himself or as president of the defendant company, merely using a subterfuge to evade the corporation laws of this state.
Count A was subject to the demurrer interposed, but the evidence is without conflict that, if plaintiff was entitled to recover at all, recovery could be had on the common counts as filed upon which issue...
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...Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693; Fagan Peel Co. v. Harrison Co., 16 Ala.App. 470, 79 So. 144. The above rule is without application if the complaint is so drawn that it does not state a cause of action. John E. Bal......
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