Bomar v. Rosser
131 Ala. 215
Ala.
1901
Check Treatment
TYSON, J.

Notwithstanding the special replications to the defendant’s plea of set-off were еliminated by demurrer, it appears that evidence was introduced without objection which was only relevant to the issue tendered by them and that the case was tried upon that irrelevant evidence. “Parties may try their controversies on illegal evidence, if they choose to do so.” — Moore v. Crowder, 72 Ala. 79; Osborn v. The State, 125 Ala. 106. The failure to object to the admission of this evidence or to move its exclusiоn was a waiver of all objection to its legality. — Thompson v. Odum, 31 Ala. 108; Masterson v. Pullen, 62 Ala. 145. “Where the issues presented by the pleadings are mutually disregarded and evidence not ‍​‌​​​‌​‌​​​​​‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​‌​​‌‌​‌‌‌​‌​‌​‍competent under the pleadings is admitted, it is erronеous to refuse an instruction *217based on sucli evidence.” — 11 Ency. PI. & Pr., 166. The reason for this rule is stated in 2 Thomp. on Trials (§ 2310) to be: “The object of pleadings being merely to notify the opposite party of the ground of action or defense, if the party comes into court, it is not perceived why he may not -waive the notice as in every other case, although the pleading may not advise him of the case or defense which is actually tendered in the evidence. Several of the best ‍​‌​​​‌​‌​​​​​‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​‌​​‌‌​‌‌‌​‌​‌​‍courts in the country proceed upon this enlightened view. The 'sound view is believed to be that the instructions have nо connection with the pleadings, except through the evidence. The jury ‘find from the evidence/ and not from the pleadings. The pleadings are intended to apprise the oppоsite party of the ground of action or defense and to guide the court in admitting or rejeсting evidence. The jury have nothing to do with them,” etc.

The leading issue raised by the evidence and presented to the jury for their determination was whether the defendant falsely represеnted to plaintiff that Joe Cothran had taken a share and Bob Smith had taken or would take a share in the joint stock company to be organized for the sale of a certain patent, upon which he, plaintiff, had a right to rely and did rely to his injury as an inducement to the execution of the notes sought by defendant to be set off in his plea.

As to whether said representations were made, the evidence was in conflict. It will not be doubted that a ■fraudulent reprеsentation of a material fact, in contradistinction ‍​‌​​​‌​‌​​​​​‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​‌​​‌‌​‌‌‌​‌​‌​‍to a false promise, calсulated to deceive when relied upon and acted on, to the damage of the party to whom made, furnishes a ground for avoiding the contract. — Davis v. Betz, 66 Ala. 206; Young v. Arntz, 86 Ala. 116; Overdeer v. Wiley, 30 Ala. 711. Injury or damage must be shown to have resulted from thе fraud if practiced. “Falsehood and deceit are always subject to moral cоndemnation, but it is not appointed to human tribunals to sit in judgment upon mere moral delinquencies or abstract wrongs, affecting only the conscience. Such tribunals take cognizance of delinquencies and wrongs only where another has been induced by them to do some act tо his own in*218jury. Deceit and fraud, if not acted upon, or if not accompanied by injury, are moral, not legal wrongs.” Continuing, tlie author says: This “rule applies when fraud is relied upon as ground for rescission of a contract at law, whether the fraud be set up as a defense in -an action on the contract or' an action be brought after rescission to recover what hаs been parted with under the contract.” — 14 Am. & Eng. Ency. Law, 137, 138 and notes. ‍​‌​​​‌​‌​​​​​‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​‌​​‌‌​‌‌‌​‌​‌​‍This principle is tersely stated in Overdeer v. Wiley, supra, in this language: “Fraud, without damage, gives no cause of action; but when these two do occur, and meet together, there an action lieth.”

The evidence in this case shows without dispute thаt the shares or interest in the patent which the plaintiff claims were to be sold to Cothran аnd Smith, were sold to other persons- of equal financial credit and responsibility. Indeed the evidence discloses undisputedly that all the shares sold, except to plaintiff, and defendаnt, were, to as responsible men as there were in the county. On this phase of the casе the general affirmative charge could have well been given for defendant, had it beеn requested. However this may be, it is quite certain that the defendant was entitled to have the third and seventh written charges requested by him given.

It may not be amiss to say, for the purpose of anоther trial, notwithstanding the evidence, was not objected to, that the plaintiff should not be allowed, if objection is made, to offer proof that it was agreed, ‍​‌​​​‌​‌​​​​​‌​‌‌​‌​​​​‌‌​‌‌​​‌​​​‌​​‌‌​‌‌‌​‌​‌​‍before the note whiсh the defendant offers to set-off was executed, that the. note would be surrendered to him. He cannot in this way be permitted to contradict his absolute unconditional written promise to pay. — Mead v. Steger, 5 Port. 498; Ohlander v. Dexter, 93 Ala. 441; Day v. Thompson, 65 Ala. 269.

Reversed and remanded.