31 Ala. 219 | Ala. | 1857
— The complainant is not entitled to a rescission of the contract described in the bill, because there is no offer on his part to place the defendant in statu quo, and he has deprived himself of the power to do so, by a sale of a portion of the property conveyed, after he was informed of the existence of the fraud alleged; and he has waited an unreasonable length of time, after the alleged perpetration of the fraud and his knowledge of it, before filing the bill; and, knowing the fraud, he has done sundry acts under the authority of the rights conferred upon him by the contract. — See Reavis’ Digest, 303-306, where the numerous decisions of this court are collected.
If the complainant had been evicted from the possession of the property sold to him, under a paramount title, he might have recovered the counsel fees in the suit which resulted in his eviction, by way of damages for the breach of warranty of title. But there is no averment of any such eviction. The counsel fees of the complainant, in suits to which he was a party, and which were brought by or against him in reference to the property after his purchase, cannot be a charge against the defendant. For the services, however, rendered by the complainant in suits for and against the defendant, he would be entitled to compensation from the defendant, as he would from any other person for similar services. The fact that the complainant contracted to pay a specified amount of the defendant’s debts, produced no legal obligation to attend to lawsuits or any other business for the defendant ; and for all the services rendered by the complainant for the defendant, in and about his lawsuits, the defendant is legally liable to the complainant, and the complain
Unliquidated damages, resulting from a fraud, and recoverable in an action of tort, are not the subject of a set-off, either at law or in equity. — Pulliam v. Owen & Russell, 25 Ala. 492. ’ Tbe complainant is, therefore, entitled to no relief in this case, on account of tbe fraud alleged in this bill, even if it be proved, of which we are by no means certain.
If there was any contract that the defendant was not to pay for board, the use of a horse, and servant hire, during his stay at the complainant’s house, it was merely verbal, and it cannot be established in contravention of the written contract. The pi’oof does not establish that the board, servant, and horse hire were gratuitously bestowed by the complainant; and we think, that he is entitled to a reasonable compensation for those things.
It follows from what we have said, that all advancements of money by the complainant to the defendant constitute an indebtedness of the latter, which is a proper matter of set-off in this case.
The final decree, rendered by the chancellor who heard the case upon the pleadings and proof, is not altogether consistent with the principles above laid down, and it must be reversed; and a decree must be here rendered, such as we think the court below ought to have rendered. A comparison of the foregoing opinion with the chancellor’s decree will show, that the decree contains an error prejudicial to the complainant, in its omission to allow him, unconditionally, a credit for all payments of the defendant’s debts existing at the date of the contract; and that it contains an error prejudicial to the defendant, in the improper allowance to the complainant for a certain class of cases. The decree must, therefore, be reversed upon the assignment of errors, and also upon the cross assignment of errors; the complainant must pay the costs of the reversal upon the appeal, and the defendant the costs of the reversal on the cross assignment of errors; and the cause must be remanded for further proceedings under the following decree:
The registrar of the chancery court for Macon county is hereby required to take an account between the complainant and defendant, in which he shall charge the defendant with all debts of the above stated descriptions established before him, and interest on them from the date when they respectively accrued; and charge the complainant with the sum of two hundred dollars per annum, commencing on the 10th March, 1843, and interest on each installment from, the end of the year; and shall ascertain and report to the said chancery court the date at which the said installments and interest on the same will amount to a sum equal to the said debts and interest on the same up to the same time; and upon the confirmation of said report, the defendant shall be perpetually enjoined from prosecuting or instituting any suit for the recovery of any installment of said annuity, or any part of such installment, accruing before the time at which such installments and interest shall equal the said debts and interest. The injunction heretofore granted is retained, to abide the further order of the court below; and the question of costs in the court below is left open for the decision of the chancellor, upon the coming in of the registrar’s report. Upon the taking of the said account, the registrar may