Moline Jewelry Co. v. Crew

• Decision Date: 09 February 1911
• Citation: 55 So. 144,171 Ala. 415
• Parties: MOLINE JEWELRY CO. v. CREW.
• Court: Alabama Supreme Court

55 So. 144

171 Ala. 415

MOLINE JEWELRY CO. v. CREW.

Supreme Court of Alabama

February 9, 1911

Rehearing Denied April 27, 1911.

Appeal from Circuit Court, Coosa County; H. P. Merritt, Special Judge.

Assumpsit by the Moline Jewelry Company against B. F. Crew. Judgment for defendant, and plaintiff appeals. Affirmed.

Charge 1 was the general affirmative charge. Charge 2 was as follows: "I charge you that, if you believe the evidence, you will find the issues raised by defendant's plea 3 in favor of the plaintiff and against the defendant B. F. Crew."

Riddle Ellis, Pruet & Riddle, for appellant.

Lackey & Bridges, for appellee.

SAYRE J.

The first three counts in appellants' complaint in the court below were in common assumpsit. The fourth proceeded for the breach of a special contract by which the defendant assumed to purchase certain goods of the plaintiffs. Under the contract, the goods were to be delivered on board the cars at the place of shipment.

In addition to the general issue, defendant filed special pleas 2 and 3, in which it is averred that the contract sued upon and set forth at length in the fourth count, was procured by fraud, in this: To state the facts briefly, that one Bouldin who was plaintiffs' agent in procuring the defendant to enter into the contract, presented to defendant for his signature the paper writing copied in the complaint, but that defendant refused to sign the same unless and until it was modified by the inclusion of a stipulation that defendant might purchase under it goods to the amount of $50 or $60 at one time, and no more, such purchase to include Rogers knives and Seth Thomas clocks (which the contract alleged and in evidence does not include) to be shipped as defendant should order them shipped, that Bouldin thereafter falsely represented to defendant that the paper writing had been modified so as to meet defendant's requirement, and that defendant thereupon signed the alleged contract relying upon Bouldin's representation, and in ignorance of the fact that it had not been changed as he desired and intended it should be. These pleas aver an offer to rescind immediately upon discovery of the fraud alleged, and deny the receipt of any goods under the alleged contract, and down to and including this averment are identical in language. Plea 3 adds that some three weeks after defendant's letter of rescission the goods arrived by express at Goodwater, where defendant did business, but that defendant refused to accept the same, "and that said goods were afterwards by the express company, and at plaintiffs' instance and direction, returned to plaintiffs." These special pleas were no doubt faulty in some respects, but, as for any objection taken to them by the demurrers, they were sufficient answers to the fourth count of the complaint, If in fact, the alleged contract was executed under the circumstances set up in the pleas, the defendant was no more bound by its recital that he had read it, and that it was complete and satisfactory, than he was by any other part of the text. It was void in toto at defendant's election. Nor does the fact that defendant may have been able to read the contract, and had an opportunity, but neglected to do so, estop him to deny any deceit as to the contents practiced in the procurement of its execution. Leonard v. Roebuck, 152 Ala. 312, 44 So. 390, and authorities there cited. "Positive representation of a fact cannot be counteracted by the implication that the party might have ascertained to the contrary. Under such circumstances, he need not institute an independent investigation." "A party asserting facts cannot complain that the other took him at his word." ...