Grissom v. J.B. Colt & Co.

• Decision Date: 08 November 1928
• Docket Number: 8 Div. 13
• Citation: 118 So. 580,218 Ala. 336
• Court: Alabama Supreme Court
• Parties: GRISSOM v. J.B. COLT & CO.

118 So. 580

218 Ala. 336

GRISSOM v. J.B. COLT & CO.

8 Div. 13

Supreme Court of Alabama

November 8, 1928

Appeal from Law and Equity Court, Franklin County; B.H. Sargent Judge.

Action by J.B. Colt & Co. against John Grissom. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Williams & Chenault, of Russellville, for appellant.

Monette & Taylor, of Birmingham, Stell & Quillin, of Russellville and Wilfred C. Roszel, of New York City, for appellee.

GARDNER J.

Suit on promissory note executed by appellant to appellee. There was judgment for the plaintiff, from which defendant prosecutes this appeal.

Plaintiff through its agent, sold defendant necessary apparatus for installation of a lighting plant in his home. The contract therefor was in writing, signed by defendant, and forwarded to the plaintiff's home office for acceptance. Upon acceptance, blank promissory note was forwarded by mail to defendant, and by him signed and returned. There were renewals of this note, and the suit is based upon the last renewal note, given by defendant to a "collecting agent." Both the contract and note call for payment of the purchase price in money.

Among the defenses interposed to this action is one set up by way of special plea to the effect that there was a conditional delivery of the note, the condition being that it was payable only in work in installment of other plants, and that plaintiff had not yet supplied the work. Appellant cites section 9044, Code of 1923, and the case of Bank of Tallassee v. Jordan, 200 Ala. 182, 75 So. 930, while appellee directs attention to the statement in the opinion of Ex parte Goldberg & Lewis, 191 Ala. 356, 67 So. 839, L.R.A.1915F, 1157, to the effect that the above noted section has reference only to "a conditional or special delivery to the payee or holder, of which he is advised at the time, and not to a delivery by an obligor to an agent *** for transmission to the payee," and insists, therefore, as the delivery here was to an agent, the cited Code provision is without application.

This question we may pass by, however, without consideration, for the reason that we are persuaded under the undisputed proof there was no conditional delivery of the contract or the note which forms a part thereof. That defendant intended an actual delivery of the contract and note is established without conflict. His testimony at most tends to establish a collateral understanding or agreement that he be permitted to install plants and in that manner pay for the note. But, as previously noted, the contract and note called for payment in money. An agreement, therefore, for payment in work would be in direct contradiction of the contract expressed in writing. To permit such proof to establish a conditional delivery would contravene the well-established rule that parol evidence is not admissible to vary and contradict the plain and unambiguous language of a written contract. The following cases sustain this conclusion: Miller Bros. v. Direct Lbr. Co., 207 Ala. 338, 92 So. 473; Motor Co. v. Johnson, 210 Ala. 38, 97 So. 49; Alabama Trunk Co. v. Hauer, 214 Ala. 473, 108 So. 339. The defense, therefore, presented by this plea, could not serve to defeat plaintiff's recovery.

In plea 5 defendant alleges false representation by the agent as to the quality of the material, and that it would not rust and would last 25 years, all of which was represented as embodied in the contract, and which representations were falsely made for the purpose of inducing defendant's signature thereto. The rule of law insisted upon by appellant that one who elects to stand by a contract made by his agent, is bound by the representations as to its contents, is well recognized and not controverted. J.B. Colt Co. v. Price, 210 Ala. 189, 97 So. 696.

Counsel for appellee construe this fifth plea as one of rescission for fraud, and insists that the evidence without dispute discloses a waiver of the right to rescission by long delay without notification whatever to plaintiff after discovery of the alleged fraud and no offer to return the property received by defendant. Fuller v. Chenault, 157 Ala. 46, 47 So. 197; Eagan Co. v. Johnson, 82 Ala. 233, 2 So. 302; Southern States Fire Ins Co. v. De Long, 178 Ala. 110, 59 So. 61; Stephenson v. Allison, 123 Ala. 439, 26 So. 290; Frith v. Hollan, 133 Ala. 583, 32 So. 494, 91 Am.St.Rep. 54; Everett v. Pickens, 203 Ala. 322, 83 So. 33; 2 Williston on Sales, §§ 648, 649; 9 Cyc. 435; Clough v. London, etc., 41 Law J. Exch. 17.

But the defrauded purchaser is not confined to his remedy by way of rescission. He may affirm the contract and upon being sued for the purchase price set up the fraud by plea of recoupment and then abate the price agreed to be paid. Fuller v. Chenault, supra; Eagan v. Johnson, supra; 2 Williston on Sales, §§ 645, 646. "He is not required, *** to demand a rescission. He may keep the property, and claim damages for the imperfection or deficiency, either by way of recoupment, or by separate action, if necessary or advisable." Eagan v. Johnson, supra.

The plea makes no reference to rescission or any repudiation of the contract. In the case of Lowery v. Mut. Loan Soc., 202 Ala. 51, 79 So. 389, this court considered pleas of similar character, and concluded they were properly to be construed as pleas of recoupment. Following in the wake of this authority, we are of the opinion plea 5 should likewise be so construed. Though no direct reference in this respect is made thereto in brief of counsel for appellant, yet we gather therefrom that counsel have also considered the plea as one in recoupment. Any deficiency as a plea of this character is not a matter here presented for our determination. But, as said in 24 R.C.L. p. 107:

"When the buyer sets up in recoupment his claim for damages for breach of warranty or fraud on the part of the seller he must make out such a case as would warrant a recovery in an action therefor."

The general rule as to measure of damages is...