Preston Motors Corporation v. Wood

• Decision Date: 29 June 1922
• Docket Number: 6 Div. 530.
• Citation: 94 So. 70,208 Ala. 172
• Parties: PRESTON MOTORS CORPORATION v. WOOD.
• Court: Alabama Supreme Court

94 So. 70

208 Ala. 172

PRESTON MOTORS CORPORATION v. WOOD.

6 Div. 530.

Supreme Court of Alabama

June 29, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action of deceit by J. S. Wood against the Preston Motors Corporation. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Weatherly Birch & Hickman, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

GARDNER J.

This is an action of deceit, plaintiff in the court below (appellee here) recovering a judgment in the sum of $1,500, from which the defendant has prosecuted this appeal.

The complaint consisted of one count. The court below construed the averments of fraudulent representation set forth in this count as having been stated conjunctively, and in this construction we agree. Some of the averments of fraudulent representation relate to matters of existing or past fact. Those relating to matters of promise made on the part of defendant, if standing alone and independently forming a basis for a cause of action, would doubtless be demurrable for a failure to aver that the promise was made with intent to defraud, and with the intention at the time not to perform. 4 R. C. L. 609; Montgomery South. Ry. v Matthews, 77 Ala. 357, 54 Am. Rep. 60; Stone v. Walker, 201 Ala. 130, 77 So. 554, L. R. A. 1918C, 839; Wall v. Graham, 192 Ala. 396, 68 So. 298.

But these averments were not stated as separate causes of action, but more as descriptive of the cause of action alleged in connection with the averments as to existing or past facts, which were entirely sufficient. These averments therefore not being frivolous, scandalous, unduly prolix or impertinent or immaterial to the cause of action alleged, were not subject to be stricken on motion of the defendant. Tillis v. Smith Sons Lbr. Co., 188 Ala. 122, 65 So. 1015. If descriptive of the cause of action alleged, they form a material part of the complaint, necessary to be proven. Southern Ry. v. Lee, 167 Ala. 268, 52 So. 648; B. R. L. & P. Co. v. Hunnicutt, 3 Ala. App. 448, 57 So. 262, and authorities cited. We are therefore of the opinion this count was not subject to the demurrer interposed, and that the motion to strike portions of the complaint was properly overruled.

Plaintiff on November 24-27, 1919, purchased from the defendant 2,000 shares of its preferred stock, of the par value of $10 per share, entering into a written contract for the purchase of same, and executing notes for the deferred payments. He paid on the purchase price $5,000, but he was at the time the agent of the defendant engaged in selling such stock to the general public, and immediately received in return from the defendant company $4,000 in cash as his commission of 20 per cent., to which he considered himself entitled as agent of the defendant in selling the stock to himself. Subsequent to this transaction, some of the stock was sold and paid for, and the plaintiff given credit.

The defendant interposed special plea setting up that the balance due defendant by plaintiff was $14,600 under a contract of purchase, and that defendant was ready, able and willing to deliver the stock certificate upon the payment of the balance of the purchase price, and offered to set off this amount against the demand of plaintiff, claiming judgment for the excess. This action of deceit proceeded upon the theory of an affirmance of the contract, alleged to have been fraudulently procured (20 Cyc. 86), and the theory of law supporting this special plea is not controverted by counsel for appellee. As said by the Nebraska court in McCready v. Phillips, 56 Neb. 446, 76 N.W. 885:

"This is not an action to rescind, but one for damages. It ratifies the contract. Plaintiff is entitled to his damages on the basis of a contract performed. He cannot repudiate it in part, and have his damages entire."

The defendant conceiving that the trial court had not fairly and substantially instructed the jury in the oral charge upon the theory of the defense set forth in the special plea, requested charge 15, which appears in the report of the case, and which the court refused.

We are of the opinion that upon the principle above discussed, this charge stated a correct proposition of law, was directly applicable to the facts in this case, and most material from the defendant's standpoint.

We have examined the oral charge of the court, and particularly the portions thereof pointed out in brief of counsel for appellee, but have reached the conclusion that the question of law presented by this charge was not fairly and substantially embraced in the oral instruction, but was only referred to in a general and casual manner. The question involved in this charge was, as previously stated, most vital to the defendant's case, and we conclude that its refusal constitutes reversible error.

Some few additional questions were treated upon original consideration of this cause, among them the motion for a new trial upon the ground the verdict was excessive.

Upon application for rehearing, counsel for appellee have most vigorously assailed the conclusion then reached in this respect, upon the ground that this court had misconstrued the rule as to measure of damages in actions of this character where the plaintiff elects to affirm the contract and sue for damages for the deceit. We recognize the general rule to be in this state, as contended by appellee's counsel, that if plaintiff retains title and does...