Mizell v. Farmers' Bank of Clio
| Decision Date | 13 February 1913 |
| Citation | 180 Ala. 568,61 So. 272 |
| Court | Alabama Supreme Court |
| Parties | MIZELL v. FARMERS' BANK OF CLIO. |
Appeal from Circuit Court, Dale County; M. Sollie, Judge.
Assumpsit by the Farmers' Bank of Clio against C.W. Mizell. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
The claim is based upon a contract which is in effect a joint note and mortgage agreeing to pay the Farmers' Bank of Clio the sum of $2,000 by or before November 11, 1908, and conveying, as security therefor, all the live stock and crops for that year, and all crops for the years 1911, 1912, 1913 1914, and 1915. The defendant pleaded the general issue, no consideration, and failure of consideration, in short by consent, and the following pleas in full:
(6) "That the said A.L. McClain, in order to sell defendant the said 100 shares of stock in the said American Health & Accident Insurance Company, falsely and fraudlently represented to defendant that the stock which defendant already owned in the Southern States Fire & Casualty Insurance Company, and in the Great Southern Life Insurance Company, each of which companies was at the time and for some years prior thereto engaged in a similar and the same character of business as was the said American Health & Accident Company, and all doing business in the city of Birmingham, Ala., and under the laws of the state of Alabama was worth on the market at the time he agreed to make such purchase $40 per share, when in fact the said stock of said company was not worth over $10 or $11 per share and probably less than this amount, of which false representation plaintiff had notice."
(7) "That in order to induce defendant to buy the said 100 shares of stock in the said American Health & Accident Insurance Company, the said A.L. McClain and J.A. Bell, as agents of the said company, falsely and fraudulently represented to the defendant that the stock of the companies named in plea 6, in which defendant had stock, had a book value of $40 per share, when in fact the books of said companies showed their stock to be worth little over $10 per share, of which false representation plaintiff had notice."
Plea 4 shows that defendant had agreed with one A.L. McClain and J.A. Bell, as the agents of the American Finance Company, and the American Health & Accident Insurance Company, to execute his note to the said American Finance Company, or to the said American Health & Accident Insurance Company, for $2,000, for 100 shares of stock in the said American Health & Accident Insurance Company, which were to be issued to him; that when they agreed on the terms McClain stated that he did not have any of the company's notes at his office, where said agreement was made, but that they were over at the office of the Farmers' Bank of Clio, and requested defendant to walk over there with him so that they might get a note and have it signed; and that when they arrived at the bank McClain asked Reynolds, cashier of the bank, for one of the company's notes, and said Reynolds picked up and handed to him some notes which defendant understood were notes payable to the company, either the American Finance Company or the American Health & Accident Insurance Company, and which said McClain, in the presence of the said Reynolds, falsely and fraudulently represented to defendant as the note of said company, and upon this representation, and with this understanding, defendant signed what he understood to be such a note, not knowing the same not to be such note.
Plea 12 is as follows: "Defendant further says that, if he executed the instrument sued on to plaintiff, it was for a loan of $2,000; that plaintiff had never delivered to him or paid out said sum of $2,000 for him under his direction, or with his consent or authority; and that plaintiff now owes defendant the said sum of $2,000, together with the interest thereon, which was a subsisting claim against plaintiff at the time this suit was brought, and which defendant offered to offset against plaintiff's claim."
The following is charge 3: "If plaintiff or some one authorized by plaintiff did not misrepresent the contents of the paper sued on to defendant, then the jury will find for plaintiff."
Charge 4. "Before the jury can find for defendant, they must be reasonably satisfied from the evidence that the plaintiff, or some one authorized by plaintiff, misrepresented the contents of the paper to him, to defendant, and that defendant was induced by said misrepresentation to sign said paper."
Charge 1. Affirmative charge as to plea 8.
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