Tuscaloosa Motor Co. v. Cockrell
| Decision Date | 09 April 1957 |
| Docket Number | 6 Div. 281 |
| Citation | 132 So.2d 736,41 Ala.App. 369 |
| Parties | TUSCALOOSA MOTOR COMPANY, Inc. v. Hayes W. COCKRELL. |
| Court | Alabama Court of Appeals |
Ward & Ward, Tuscaloosa, for appellant.
De Graffenried, de Graffenried & de Graffenried, Tuscaloosa, for appellee.
This cause was submitted upon a motion to strike the assignments of error and dismiss the appeal, and upon the merits.
The motion is made upon the grounds that: (1) The assignments of error filed by appellant, bound with the transcript filed with the clerk, do not bear the certificate that a copy of same has been served upon appellee or his counsel, and (2) That no copy of such assignments were served upon appellee or his counsel, as required by Supreme Court Rule 1, Code 1940, Tit. 7 Appendix.
Counsel for appellant attached to his objection to the motion a certificate of the Clerk of the Circuit Court of Tuscaloosa County to the effect that on the 9th day of November, 1955, counsel for appellant furnished the said circuit clerk the assignments of error to be bound with the transcript and that a copy of the complete transcript, including the assignments of error, was delivered by him to appellee's counsel on or about November 14, 1955.
Counsel for appellant also filed answer to said motion setting up therein that his failure to certify that a copy of said assignments of error had been served on the attorneys for appellee was due to an oversight; that he filed brief for appellant in said cause on appeal on the 14 day of December, 1955, serving a copy of same on attorneys for appellee, as shown by certificate on said brief; that appellee's counsel filed reply brief on the 30th day of December, 1955, in which brief he joined issue on each error assigned, as shown by page 17 of appellee's brief; that appellee's counsel had before them a complete copy of the assignments of error, bound with the transcript, in time for them to prepare a reply brief to appellant's brief, and that appellee is not shown to have been prejudiced by the failure to comply with Supreme Court Rule 1.
We are of the opinion that the granting or overruling of a motion to strike the assignments of error for a noncompliance with Rule 1 is discretionary with the court. It does not appear that the appellee was prejudiced by the failure of counsel for appellant to certify that a copy of the assignments had been served. The motion to dismiss the appeal is overruled.
The cause was submitted to the jury upon count 2 of the complaint, the common count for money had and received, and counts 6 and 7 claiming damages for deceit. Defendant pleaded in short by consent.
There was a general verdict in favor of plaintiff for $600. Defendant appeals.
The complaint first consisted of counts 1 and 2. It was amended by adding counts 3, 4 and 5, and later amended by adding counts 6 and 7. The defendant filed demurrer to the complaint as first filed, and refiled said demurrer and additional demurrers as the complaint was amended from time to time. Argument in brief directs our attention to pages 3 and 7 of the transcript for grounds of demurrer insisted upon. The grounds of demurrer appearing on these pages take none of the points insisted upon in brief.
The evidence tends to show that on January 8, 1953, plaintiff purchased a 1952 Chevrolet automobile from the Tuscaloosa Motor Company, trading in his used Ford automobile, making a cash payment of $28 and executing a conditional sale contract and promissory note for the sum of $1,928.40 balance due on the purchase price, payable in 24 monthly installments of $80.35 each. The note and the conditional sale contract were negotiable instruments. Commercial Credit Company, Inc., v. Seale, 30 Ala.App. 440, 8 So.2d 199. These instruments were duly transferred and assigned, for value, before maturity, to Associates Discount Corporation.
The plaintiff testified that he went to the Tuscaloosa Motor Company to buy a new automobile but was told that there were no new cars available and was shown a 1952 model automobile which had been used as a demonstrator. Plaintiff examined the automobile, made a test drive, and upon his return had a discussion with Mr. Roy Woodley as to the price of the car. Mr. Woodley said: 'With your automobile and $28.00 there will be a balance of $900.00, plus carrying charge and interest.'
Plaintiff agreed to these terms and Mr. Roy Woodley, manager of defendant corporation, asked plaintiff and his wife to wait in the outer office while the papers were being prepared. Roy Woodley left and plaintiff did not see him again that day.
About a half hour later Mr. Bob Woodley brought the papers in and after a lengthy discussion of the mechanical features of the automobile, asked plaintiff: 'If I was familiar with the contract which I had bargained with his brother, Mr. Roy Woodley, and I told him I was, and he said the agreement is drawn up like the agreement you made and he laid the papers before me.' The plaintiff stated there were several copies and Mr. Woodley checked the places he wanted plaintiff to sign, and that he signed without reading the papers or having them read to him.
Mr. Woodley took the papers into the inner office and returned in a few minutes and told plaintiff the automobile was ready and handed him an envelope containing copies of the contract and invoice.
Plaintiff stated he had no discussion with Mr. Bob Woodley as to the terms of the contract; that he was in no way prevented from reading any of the papers; that his sole reason for not asking to read them was Mr. Woodley's statement that they were correct; that he did not see any figures on the contract or purchase order at the time he signed, although he would not say they were not there.
On the trip to his home, some four miles from defendant's place of business, plaintiff's wife opened the envelope, examined the papers and called to his attention that they showed a balance due of $1,928.40 instead of $900. When they reached home plaintiff looked at the papers and found that his wife's observation was correct.
However, plaintiff made no complaint as to the alleged overcharge until approximately two weeks later, when he brought the automobile back to defendant to have the wheels aligned. Mr. Woodley said they would do the work but plaintiff would have to pay for it that they didn't guarantee alignment, and
Plaintiff identified the invoice which showed the list price of the automobile at $1,564.32. Added charges for freight, power-glide, undercoat, optional equipment, two-toned paint, taxes, insurance, finance charges, etc., brought the total 'time price' to $2,601.90. Plaintiff was allowed $645 for his Ford which was traded in. $28.50 was paid in cash.
The law is well settled that when one is induced to enter into a contract by fraud, he has an election of remedies: (1) to rescind the contract and sue for his money back, in which event he must give up possession of the property and restore all the benefits he received under it, or (2) affirm the contract, and sue for damages for the deceit, when he may retain the property, and its other benefits. Day v. Broyles, 222 Ala. 508, 133 So. 269.
'The action for money had and received cannot be sustained by such a transaction, except upon the basis of a rescission.' Day v. Broyles, supra; McCay v. Jenkins, 244 Ala. 650, 15 So.2d 409, 149 A.L.R. 746.
In Standard Tilton Milling Co. v. Mixon, 243 Ala. 309, 9 So.2d 911, 913, the court said:
'While generally a party rescinding a contract for fraud is under a duty to restore the benefits received under the contract before he can rescind, he does not have to do so where the consideration received is without value, or where it is impossible, impractical, or futile to restore the consideration.'
Plaintiff does not contend that he has rescinded the contract or offered to return to the defendant the possession of the automobile acquired under the contract. In brief, counsel while admitting the general rule that before an action can be sustained for maney had and received there must be a rescission of the contract and an offer to restore the benefits received therefrom, insists that this case falls within the operation of the exception to the rule, above noted, that where restitution is impossible no offer to restore the benefits is required. The brief states:
'The evidence clearly shows that a rescission of the contract was rendered impossible when the appellant sold the conditional sales contract to an innocent purchaser for value without notice. * * * after being informed by the appellant that there was nothing the appellant could do about the contract, as it had been sold, it would have been useless for appellant to have offered to return the automobile which he purchased from plaintiff.'
No case upon this point has been found in this State. In Holden v. Advance-Rumely Thresher Co., 61 N.D. 584, 239 N.W. 479, 484, the court said:
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