Mobile Bldg. & Loan Ass'n v. Odom

• Decision Date: 19 March 1936
• Docket Number: 1 Div. 912
• Citation: 166 So. 698,232 Ala. 19
• Parties: MOBILE BUILDING & LOAN ASS'N v. ODOM.
• Court: Alabama Supreme Court

166 So. 698

232 Ala. 19

MOBILE BUILDING & LOAN ASS'N v. ODOM.

1 Div. 912

Supreme Court of Alabama

March 19, 1936

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action by Mrs. M.J. Odom against the Mobile Building & Loan Association. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

D.R Coley, Jr., Geo. W. McRae, and David M. Shapiro, all of Mobile, for appellant.

Jere Austill, of Mobile, for appellee.

KNIGHT Justice.

The plaintiff has stated her cause of action against the defendant in five counts. Counts 1, 2, and amended counts 3 and 4 claim damages for fraud and deceit practiced upon the plaintiff by defendant in the sale to her of two certain "membership" certificates in the defendant corporation. The complaint does not disclose the name of defendant's agent who negotiated the sale of the certificates to the plaintiff. However, the evidence shows tat, if any fraud or deceit was in fact practiced upon the plaintiff, the defendant's sales agent McElroy was the guilty party.

Count 5 was added on the day of the trial, and in this count the plaintiff claimed of the defendant $500, with interest thereon, from July 30, 1931, for money had and received. The evident theory of this count was that the plaintiff had rescinded the sale and purchase of the certificates referred to in the first four counts of the complaint.

We are fully persuaded that counts 1, 2, and amended counts 3 and 4 each stated a cause of action against the defendant as for fraud and deceit in the sale of the certificates of membership to the plaintiff. And for the purposes of a decision of the case we may assume that the demurrers to said counts were properly overruled.

However there was manifest error committed by the court in striking defendant's pleas 3, 4, and 5. The pleas were not unnecessarily prolix, irrelevant, frivolous, or unnecessarily repeated, and therefore were not subject to be stricken upon any of said grounds.

Motion to strike is not the proper way to test the sufficiency of a plea. To test its sufficiency, the plaintiff should be put to his demurrer. Louisville & Nashville R. Co. v. Smith, 163 Ala. 141, 50 So. 241; Brooks v. Continental Ins. Co., 125 Ala. 615, 29 So. 13; Wefel v. Stillman, 151 Ala. 249, 44 So. 203. After these pleas were stricken, the defendant filed a plea numbered 5, in the following words: "5. Waiver, in short by consent." Original plea 5 undertook to set up a waiver against the plaintiff, and under this last plea defendant could offer in evidence all matters available to it under stricken plea 5. Therefore the defendant could not have suffered injury by the striking of original plea 5.

The case went to the jury on the plea of the general issue and plea 5 (in short by consent).

It is elementary that fraud alone, without damage, will not give a right of action. Code, § 5676; Wall v. Graham, 192 Ala. 396, 68 So. 298; Wilson v. McKleroy, 206 Ala. 342, 89 So. 584.

Injury is not merely a consequence following the fraud alleged, but is an essential element of the wrong. There can be no recovery of even nominal damages where the plaintiff fails to show injury sufficient to sustain an action of fraud. The elements of fraud and damage must concur to give rise to an action for damages. Oates v. Glover, 228 Ala. 656, 154 So. 786.

The testimony in this case tends to show that the plaintiff was induced by the false and fraudulent representations of the defendant's agent McElroy to buy the certificates of membership, and, while the testimony on this phase of the case was sufficient to carry it to the jury, so far as counts 1, 2, and amended counts 3 and 4 were concerned, yet there was and is no evidence in the case showing, or tending to show, what, if any, damages accrued to plaintiff by reason of the fraud proven.

The measure of plaintiff's actual damages under the first four counts of the complaint, setting up fraud and deceit, is the difference between the value of the membership certificates at the time of the discovery of the fraud and the purchase price, or the value the same would have had, if they possessed the qualities represented and within the contemplation of the parties, with interest thereon. Southern Bldg. & Loan Ass'n v. Bryant, 225 Ala. 527, 144 So. 367; Cartwright v. Hughes, 226 Ala. 464, 147 So. 399; Southern Building & Loan Ass'n v. Wales, 224 Ala. 40, 138 So. 556.

There was no evidence in the case showing, or tending to show, what the values of the certificates were at the time of the discovery of the fraud or at any other time after the plaintiff purchased the same. Therefore the evidence fails to show that the plaintiff suffered any actual damage by the transaction.

Where no actual damage is...