J.B. Colt Co. v. Price

• Decision Date: 11 October 1923
• Docket Number: 4 Div. 80.
• Parties: J. B. COLT CO. v. PRICE.
• Court: Alabama Supreme Court

97 So. 696

210 Ala. 189

J. B. COLT CO. v. PRICE.

4 Div. 80.

Supreme Court of Alabama

October 11, 1923

Appeal from Circuit Court, Pike County; Arthur B. Foster, Judge.

Action by the J. B. Colt Company against J. C. Price. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Thompson & Thompson, of Birmingham, and C. C. Brannen, of Troy, for appellant.

T. L Borom and W. L. Parks, both of Troy, for appellee.

SAYRE J.

Plaintiff appellant, sued to recover damages for the breach of a written agreement whereby plaintiff undertook to furnish apparatus for lighting defendant's dwelling, for which defendant agreed to pay $239.60. The agreement is exhibited with counts 1, 2, and 3. Count 4 is the common count for the price of goods, wares, and merchandise.

Demurrer to defendant's plea 5 was overruled, and this ruling is assigned for error. It is urged that the plea is bad for duplicity, for that it combines two separate and distinct defenses. Sloss-Sheffield Co. v. Smith, 166 Ala. 443, 52 So. 38; Berlin Mach. Works v. Ewart, 184 Ala. 272, 63 So. 567. In inverted order of allegation the plea, while admitting by not denying the receipt and possession of the apparatus, avoids the contract stated in the complaint by alleging the procurement of its execution by fraud, alleges the true contract-among other things a warranty of the material, workmanship, and durability of the apparatus-its breach, defendant's rescission, in effect, on that account, and that defendant holds the property subject to plaintiff's disposal. The plea is a plea of rescission and presents a single defense. Fraud is sufficiently alleged. Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 So. 144; Brenard Mfg. Co. v. Cannon, 209 Ala. 626, 96 So. 760. That defendant had an opportunity to search the paper writing tendered to him for signature, but neglected to do so, does not estop him to allege the deceit practised in the procurement of its execution. Leonard v. Roebuck, 152 Ala. 312, 44 So. 390. And plaintiff, electing to stand by the contract made by its agent, is bound by his representations as to its contents. Williamson v. Tyson, 105 Ala. 653, 17 So. 336; Philips & Buttorff Co. v. Wild, 144 Ala. 545, 39 So. 359.

"Where statements are made as of fact, especially where they concern matters which may be assumed to be within the knowledge of the party making them and where there is nothing to arouse suspicion, the party to whom they are made has a right to rely upon them without instituting

an independent investigation." Tillis v. Smith Sons Lumber Co., 188 Ala. 132, 65 So. 1017.

Nor was the representation alleged a statement of mere opinion. It was a statement of fact; or, if by any construction it may be taken as an expression of opinion as to the legal effect of the writing, it was, in the circumstances alleged, none the less an affirmation of fact, that is, of the fact of a bona fide opinion, and, if it was falsely and fraudulently made "to mislead or cheat another, to abuse his confidence, or to blind his judgment [and this is generally a question of fact for the jury] it is in law and morals as reprehensible as if any other fact were affirmed for the like purpose." Tillis v. Smith Sons Lumber Co., supra. In this connection appellant seems to rely on Fulton v. Sword Medicine Co., 145 Ala....