Stafford v. Colonial Mortgage & Bond Co.

• Decision Date: 23 October 1930
• Docket Number: 6 Div. 682.
• Parties: STAFFORD ET AL. v. COLONIAL MORTGAGE & BOND CO.
• Court: Alabama Supreme Court

130 So. 383

221 Ala. 636

STAFFORD ET AL. v. COLONIAL MORTGAGE & BOND CO.

6 Div. 682.

Supreme Court of Alabama

October 23, 1930

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for rent by the Colonial Mortgage & Bond Company against Al D. Stafford and Margaret Stafford. From a judgment for plaintiff, defendants appeal.

Transferred from the Court of Appeals.

Reversed and rendered.

Charles W. Greer, of Birmingham, for appellants.

G. R Hubbard, of Birmingham, for appellee.

BOULDIN J.

The suit was by landlord against tenant to recover a monthly instalment of rent.

The defense was rescission of the rental contract for fraud in its procurement.

The cause was tried without a jury. The trial judge made a special finding of facts under Code 1923, § 9500.

Appellee makes the point that such finding and judgment are not subject to review because the bill of exceptions shows no exception reserved thereto.

The case of Johnstone et al. v. O'Rear et al., 220 Ala. 219, 124 So. 743, relied upon on this point, has been overruled by the later case of Browne v. Giger (Ala Sup.) 128 So. 174.

Appellants by written lease, rented an apartment from the appellee for six months, April 1 to September 30, 1927.

On the issue of fraud vel non the finding of facts was as follows:

"Prior to the entering into and the execution of the aforesaid lease by the defendants, the duly authorized agent of the plaintiff conducted the negotiations looking toward and having for their purpose the consummation and execution of the aforesaid lease, and at and during said negotiations, plaintiff's said agent knew of the fact that defendant's wife was then and would for several months to follow be in a pregnant condition. At and during said negotiations plaintiff's said agent as an inducement to the defendants to enter into said lease represented to the defendants that said apartment was constructed as and was as sound proof as the Dulion Apartments; said representations were material to the subject matter of the negotiations and the lease, and the defendants relied upon said representations in signing, executing and entering into said lease. The said apartment K-2 was not as sound proof as the Dulion Apartments; the Dulion Apartments were quiet and comfortable and in the Dulion Apartments, noises from flushing toilets, moving footsteps and scraping chairs in overhead apartments were seldom audible; in the apartment leased in the instant case, the footsteps of anyone walking across the floor in the apartment above could be plainly heard by those occupying apartment K-2; the water closet in the apartment above, apartment K-2 was not constructed and the walls surrounding said apartment were so constructed that every time the toilet in said upper apartment was flushed the noises consequent thereon could be plainly heard in apartment K-2; the said representations of the plaintiff's agent to the defendants was (were) false, but the Court makes no finding as to whether or not said representations were known by said agent to be false or recklessly made.

"The defendants took possession of apartment K-2 on April 1, 1927, and paid the April rent of $75.00 on April 1, 1927, and occupied the same as a residence continuously thereafter until May 17, 1927, on which last said date the defendants removed from the abandoned the possession of said apartment."

Finding the representations to be false and material, the court correctly held there was legal fraud without regard to any intent to deceive. Code 1923, § 8049; Cartwright v. Braly, 218 Ala. 49, 117 So. 477.

On the question of affirmance of the contract after knowledge of the fraud, and consequent waiver of the right to rescind, the finding of facts was as follows:

"The apartment just above apartment K-2, was not occupied at the time defendants went into the possession of apartment K-2, on April 1, 1927, but about two weeks later, on to-wit: April 15, 1927, other tenants of the plaintiff entered into the possession of the apartment just above apartment K-2, and continuously thereafter the noises from footsteps and flushing toilets as above set forth could be and were heard and known to the plaintiffs, and continuously after April 15, 1927, the defendants knew that apartment K-2 was not as sound proof as the Dulion Apartments.

"On April 30th, 1927, the defendant Al Stafford wrote and sent a letter to the plaintiff stating that they were in every way well pleased with Apartment K-2, except as to the noises continuously received from the apartment above apartment K-2. In that letter the defendant, Al Stafford further said in said letter in speaking of said noises: 'It is not only bothersome in the evenings but particularly in the early morning hours. If we annoy the people above us I am not aware of it, but every time they walk across the floor we can hear them as distinctly as if they were in our own apartment. If it is possible for your firm to make this sound proof, or in any way curb to some extent the noise, I will immediately sign a lease for another year. As I said, we are more than pleased with our place in every other respect. Mrs. Stafford is nervous and will be more so within the next few months. Her doctor advises quiet, and the noise is becoming more and more objectionable; however if you will try and remedy it, even to a slight extent, I am ready to sign for our place for another year.'

"The plaintiff made no reply to said letter and took no action of any kind and said nothing in respect of the things mentioned in said last mentioned letter.

"No facts were shown other than those herein recited and found, that would show that Mr. and Mrs. Stafford could not have reasonably vacated said apartment K-2 during the last two weeks of April, 1927, had they desired to rescind the lease on account of the above set forth misrepresentation.

"On May 1st, 1927, the defendants with a knowledge that apartment K-2 was not as sound proof as the Dulion Apartments, paid the plaintiff the rent of $75.00 due for the month of May.

"Thereafter the defendants continued to occupy apartment K-2 until May 17, 1927, on which date, defendants abandoned said apartment K-2, and on said date, defendant Al Stafford wrote the plaintiff a letter in which he stated in substance that Mrs. Stafford was extremely nervous and was in the care of a physician, that her condition was a delicate one and required rest and sleep and that due to the noises in the apartment over them, she was unable to rest at any time, that he was leaving the apartment with 15 days rent paid in advance and that he was enclosing the keys to the apartment."

The conclusion of the court on this state of facts is thus stated:

"It is the opinion of the Court that though the defendants after a discovery of the misrepresentation as to the condition of the premises had a reasonable length of time in which to rescind the lease, that that right was waived and the lease affirmed by their payment of the May rent on May 1st, 1927 with a full knowledge on their part that the premises were not in the condition as represented.

"The payment of the rent by them on May 1, 1927, was a clear and positive affirmation of the contract; a treatment of the lease as of binding force and effect; and acquisition of a benefit namely, the clear right to occupy the premises throughout the month of May, 1927. It was a part performance of the contract after knowledge of the misrepresentation.

"True on the day preceding the defendants has (had) complained of the condition of the premises, but there is nothing in defendants' letter of April 30, 1927, inconsistent with a claim on their part to the continued efficacy of the then existing lease. The letter of ...