J.A. Fay & Egan Co. v. Independent Lumber Co.
| Decision Date | 30 May 1912 |
| Citation | 178 Ala. 166,59 So. 470 |
| Parties | J. A. FAY & EGAN CO. v. INDEPENDENT LUMBER CO. |
| Court | Alabama Supreme Court |
Rehearing Denied June 29, 1912.
Appeal from Chancery Court, Autauga County; W. W. Whiteside Chancellor.
Bill by the Independent Lumber Company against J. A. Fay & Egan Company to cancel a contract for fraud and for injunction against a suit at law, etc. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.
Eugene Ballard, of Prattville, for appellants.
Reese & Reese, of Selma, for appellee.
The bill in this case is filed to cancel or rescind a contract of sale which the complainant claims to have been induced to enter into through the fraudulent acts and representations of the respondents. It is no objection to the equity of the bill that the vendee may sue at law for a breach of warranty or for deceit. Perry v. Boyd, 126 Ala. 162, 28 So. 711, 85 Am. St. Rep. 17; Cullum v. Branch, 4 Ala. 21, 37 Am. Dec. 725; Baptiste v. Peters, 51 Ala. 158.
Nor can there be any doubt as to the equity of the bill. It seeks to cancel the contract of sale for fraud, and relies upon extrinsic evidence to establish said fraud, and negatives an adequate remedy at law. Hodge v. McMahan, 137 Ala. 171, 34 So. 185; Merritt v. Ehrman, 116 Ala. 278, 22 So. 514; Andrews v. Frierson, 134 Ala. 631, 33 So. 6; Pinkston v. Boykin, 130 Ala. 483, 30 So. 398; Hafer v. Cole, 57 So. 757.
If the complainant was fraudulently induced to enter into the contract and to execute the same, it would not, of course, be bound by any particular clause of same concluding it against setting up false and fraudulent representations within a proper and reasonable time. If the instrument was void for fraud in its execution, as alleged in complainant's bill, it was of no more binding efficacy upon the complainant than if it had no existence, or were a piece of waste paper. Burroughs v. Pac. Guano Co., 81 Ala. 255, 1 So. 212.
Nor does the bill show, upon its face, laches on the part of the complainant, as it expressly avers action and an offer to rescind as soon as it was finally demonstrated and ascertained that the false representations, as made to the complainant, and which induced it to purchase the machine, were false. In other words, the bill avers that the detention of the machine and the failure to at once offer to rescind was superinduced by an effort on the part of the respondents to demonstrate that the machine would accomplish the work as represented, and it was given an opportunity to repair or regulate the same, and, after repeated efforts on its part to make it do the requisite work, it was demonstrated that it could not, and the complainant then and there offered to rescind and demanded a restoration of the statute quo.
The bill plainly shows that the representations were more than the mere expression of an opinion and clearly sets out that the complainant was induced by said representations to purchase the machine and to enter upon the said contract.
The chancery court did not err in overruling the respondents' demurrers to the bill, and the decree is affirmed.
Affirmed.
DOWDELL, C.J., and SIMPSON, McCLELLAN, and SOMERVILLE, JJ., concur. MAYFIELD and SAYRE, JJ., are of the opinion that there is no equity in the bill, and dissent.
In our opinion the bill contains no equity, and the demurrer should have been sustained.
No one denies or doubts that courts of equity have the power, in proper cases, to cancel contracts for fraud or deceit; nor do we doubt the correctness of the authorities relied upon to affirm this case. Such authorities state sound and, in the main, elementary principles; but in our judgment the bill in this case does not make a case within the rules declared in the majority opinion and in the authorities cited. The facts averred in the bill in substance are that appellant sold appellee a lot of sawmill machinery, including a lumber dressing machine; that the contract of sale was conditional and in writing; that notes were given for the deferred payments; that the aggregate...
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