Southern Building & Loan Ass'n v. Bartee

• Decision Date: 06 October 1931
• Docket Number: 6 Div. 987.
• Court: Alabama Court of Appeals
• Parties: SOUTHERN BUILDING & LOAN ASS'N v. BARTEE.

139 So. 293

24 Ala.App. 555

SOUTHERN BUILDING & LOAN ASS'N
v.
BARTEE.

6 Div. 987.

Court of Appeals of Alabama

October 6, 1931

Rehearing Denied Nov. 24, 1931.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action in assumpsit by Mrs. Essie Bartee against the Southern Building & Loan Association. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Southern Building & Loan Ass'n v. Bartee (6 Div. 71) 139 So. 294.

Lange, Simpson & Brantley, of Birmingham, for appellant.

[24 Ala.App. 556] J. K. Taylor and Charles W. Greer, both of Birmingham, for appellee.

RICE, J.

Suit by appellee, in which she had recovery, against appellant, on the common counts, for money had and received.

The basis of appellee's claim is that she was defrauded, by the misrepresentations of appellant's duly authorized agent, into paying over to it a certain sum of money, for its use, which, according to said representations, would be returned to her whenever, and if, she demanded it.

We see no occasion for our going into a dissertation upon the principles of law which govern such controversies. Elaborate discussion may be found in the cases collected and cited in the opinion in the case of Letson v. Mutual Loan Soc., 208 Ala. 285, 286, 94 So. 288.

Appellant complains at the court's allowing appellee to withdraw counts in deceit, which had been filed simultaneously with the "common counts" (upon one of which the trial was had), after appellant had interposed pleas of set-off and recoupment.

But we think the trial court was well within its rights, in the action mentioned. Code 1923, § 9513.

In the first place, we cannot see that appellant was injured. The said pleas of set-off and recoupment were interposed to the "common counts," at the same time they were interposed to those claiming as for deceit, and appellee's answers to appellant's interrogatories, made well in advance of the trial, clearly disclosed her theory of her right to recover-which was the one actually litigated on the trial.

Then, in the second place, the filing of the counts in deceit, which followed, in the same pleading, those denominated the "common counts," could not, we think, be said to constitute an "election" by appellee to "affirm" the fraudulent transaction complained of. 20 C.J. 31.

As said in the authority cited, "Where the plaintiff alleges two inconsistent causes of action in the same...