Southern Building & Loan Ass'n v. Wales

• Decision Date: 03 November 1931
• Docket Number: 8 Div. 322.
• Citation: 138 So. 553,24 Ala.App. 542
• Court: Alabama Court of Appeals
• Parties: SOUTHERN BUILDING & LOAN ASS'N v. WALES.

138 So. 553

24 Ala.App. 542

SOUTHERN BUILDING & LOAN ASS'N v. WALES.

8 Div. 322.

Court of Appeals of Alabama

November 3, 1931

Rehearing Denied Nov. 17, 1931.

Appeal from Circuit Court, Limestone County; James E. Horton, Judge.

Action by R. V. Wales 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. Wales, 138 So. 556.

Lange Simpson & Brantley, of Birmingham, for appellant.

J. G. Rankin, of Athens, for appellee.

SAMFORD J.

The plaintiff stated his cause of action in four counts, all of which alleged the same transaction, and all of which alleged fraud and misrepresentation on the part of defendant's agent, participated in by defendant, by and through which plaintiff was induced fraudulently to part with his money to the defendant, to the damage of plaintiff in the amount named. Two of the counts, viz. 1 and 4, claim damages for the deceit thereby affirming the contract, and two counts, viz. 2 and 3, repudiate the contract on the grounds of alleged fraud, and claim a return of the money thereby obtained.

Under section 9467 of the Code of 1923, "All actions ex delicto may be joined in the same suit, and may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject matter, and the issue may be determined separately by the jury, and the proper judgment shall be rendered by the court and the costs fairly apportioned." In the instant case there was but one transaction between the parties by and through which plaintiff claims he was damaged. He has stated this claim in four different aspects and upon which only one recovery can be had. They may be inconsistent remedies, but under our law may be joined in the same complaint. Being so joined, the complaint is not subject to demurrer, and, after the evidence is all in, the plaintiff cannot be required to elect. The jury finds the verdict from the evidence on the count on which plaintiff is entitled to recover, under proper instructions from the court. Sov. Camp, W. O. W., v Carrell, 218 Ala. 613, 119 So. 640.

In other words, plaintiff has only one damage, but is uncertain as to whether his action is in deceit or for a rescission. Both are based upon the fraud of defendant in obtaining the money from plaintiff. The contract is executory, and the plaintiff has received no benefits under it other than conditional obligations over which defendant retains control, and in either event the damages would be the same. Under these conditions plaintiff may state his cause of action in both aspects and leave to the jury the right to say which has been proven. There is an expression in the opinion in the case of Fairbanks, Morse & Co. v. Dees, 220 Ala. 41, 126 So. 624, which seems to conflict with the foregoing statement. We do not attempt to explain the distinction, if any exists, further than to say that in the Dees Case, supra, there was no question of pleading involved, while in the instant case the complaint in its double aspect, being stated in separate counts and relating to the same transaction, is justified by section 9467 of the Code of 1923, and the decision in Sov. Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640; First National Bank of Gadsden v. Morgan, 213 Ala. 125, 104 So. 403.

In view of the foregoing, charges 19 and 29 were properly refused.

The defendant filed pleas of set-off and recoupment, and insists that it is entitled to judgment on these pleas. The replication to these pleas alleged fraud on the part of defendant in obtaining plaintiff's signature to the obligation on which these pleas were based. The issue was for the jury, and was properly submitted under the charge of the court. If the transaction was fraudulent on the part of defendant, it could not enforce the terms of the obligation. Charges F and G were properly refused.

Appellant insists by its assignment of errors 1,4, 7, 10, and 11 that "The plaintiff under the law of Alabama has no right of action in deceit in a case of this kind." Appellant, in support of this proposition, cites Preston Motors Corporation v. Wood, 208 Ala. 172, 94 So. 70. There is much pith in what is said by Mr. Justice Gardner in the case above cited, and the argument from Wilson v. Hundley, 96 Va. 96, 30 S.E. 492, 70 Am. St. Rep. 837, quoted by the learned justice, is persuasive to the conclusion there reached, but, so far as we...