State Building & Loan Ass'n v. Bradwell

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: State Building & Loan Ass'n v. Bradwell, 227 Ala. 606, 151 So. 689 (Ala. 1933)
• Decision Date: 21 December 1933
• Docket Number: 4 Div. 746.
• Parties: STATE BUILDING & LOAN ASS'N v. BRADWELL.

151 So. 689

227 Ala. 606

STATE BUILDING & LOAN ASS'N v. BRADWELL.

4 Div. 746.

Supreme Court of Alabama

December 21, 1933

Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.

Action by I. G. Bradwell against the State Building & Loan Association. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals under section 7324, Code 1923.

Affirmed.

Arthur B. Chilton, of Montgomery, for appellant.

Sentell Kettler & Sentell, of Luverne, and Powell & Hamilton, of Greenville, for appellee.

THOMAS Justice.

This cause is transferred from the Court of Appeals under the authority of section 7324 of the Code of 1923.

The several counts of the complaint were for damages resulting from fraud perpetrated upon plaintiff by defendant through the defendant's servants acting within the line and scope of their employment, who represented they were selling, as agents of defendant, certificates of stock which would bear 8 per cent. interest per annum, payable semiannually; that relying upon these representations and statements, which were false, plaintiff was induced to transfer to defendant the stock of the Alabama Power Company to the value of $558, and he asks a judgment against the defendant for that amount plus the interest it was paid to this date. In another count of the complaint, plaintiff claims a like sum for conversion "by the defendant of five shares of the capital stock of the Alabama Power Company which, he alleges, was of the value of $558.00," and then in the fourth count of the complaint he claims $558 "for money had and received by the defendant to the use of the plaintiff."

The reply was a denial of the allegations of the complaint denial of the agency of the selling agents or that they were acting within the line and scope of their employment; saying further that, if "this plaintiff received * * * the stock as alleged in the complaint and that stock was of any value, the plaintiff neglected for a reasonable time after he discovered he was defrauded to offer to return or to return the stock."

The court properly sustained demurrers to appellant's (defendant's) plea to jurisdiction as to the tort counts. Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 37 A. L. R. 898; section 10471, Code. And, being addressed to the whole complaint, and not alone to the count declaring an account (count 4), there was no error in sustaining demurrers to this plea. Wooddy v. Berry, 190 Ala. 308, 67 So. 450; Roach v. Wright, 195 Ala. 333, 70 So. 271. Count 2 states a substantial cause of action not subject to grounds assigned. That count alleges the representations made by the defendant through its agents, how they came to plaintiff's knowledge, that he relied thereupon, and was induced by the representations to part with his alleged stock and property of the value of $558, and that such misrepresentations were knowingly false. 27 C.J. 3 (147). Count 2 being sufficient, the demurrer which was directed jointly to both counts 1 and 2 was properly overruled.

There being no refused written charges or other rulings of the court, there is nothing to review under assignment of error 4-that there was error in submitting counts 3 and 4 to the jury.

Refused charge 1 was a request for general affirmative instruction to find for the defendant, and was directed to all four counts. If there was any evidence to sustain either of the counts, that charge was properly refused; that is to say, if the transaction between defendant's salesmen and the plaintiff was tainted with fraud, the salesmen acting in the matter within the line and scope of their authority, and through the fraud plaintiff was damaged, he would be entitled to recover on tort counts, or waiving the tort on action for money had and received.

It is further contended by defendant that Tracy and Oberholtzer the salesmen, were not the agents of defendant's company, but of one Duke, the agent of defendant under contract to sell the certificates of stock. It is admitted that the named sales agents were acting as such salesmen of Duke, and defendant received the $558 or the proceeds of the transaction knowing at the time that Tracy and Oberholtzer were so acting, and that thereafter defendant issued and delivered the passbooks and stock in accordance with the applications taken by such agents. It is shown that from January 1, 1930, to July 30, 1930, the plaintiff retained these evidences of the sale, and then asked for his dividends, which were offered at a much reduced rate than that represented by the sales agents, and was refused. Had he examined these certificates, he would not have been informed as to such disparity of dividend rates. The evidence shows that plaintiff was a very old man, long past three score and twenty years, was very infirm of body, was educated; that the applications, when signed, were taken away by such sales agents. Under the circumstances shown by the record, he was lulled into a feeling of security by this representation of appellant...