140 Ala. 602 | Ala. | 1903
In the court below defendant interposed the plea of the general issue, and special pleas numbered 4, 5, and 6. On the trial no evidence was introduced in support of the fourth and sixth pleas, and they are, therefore, allowed to pass from view.
A plea of false representations and deceit “must relate distinctly and directly to the contract, and must affect its very essence and substance. * * * If the fraud be such that, had it not been practised, the contract would not have been made, or the transaction completed, then it is material to it; but if it be shown or made probable, that the same thing would have been done by the parties, in the same way, if the fraud had not been practised, it cannot be deemed material.” — 2 Parsons on Contracts, p. 770.
“A misrepresentation of a fact by a vendor, whether intended to deceive or not, may entitle the vendee to a rescission; but to do so, it must have entered into the trade to the extent at least that the vendee must have reasonably relied upon the statement as true, and it must have formed an inducement to his prejudice.” Brewer v. Arantz, 124 Ala. 129.
The fifth plea, if bad for any reason, as not containing all that should have been averred to render it unassailable on demurrer, was good as against any of the grounds inteiposed to it. The special replication to this plea was bad, and subject to some of the vices pointed out on demurrer.—Winter v. Bank, 54 Ala. 172; Bardour v. W. F. & M. I. Co., 60 Ala. 434.
On the cross examination of the plaintiff’s witness, Jordan, the defendant was allowed to ash him, “What were the representations made [by the traveling salesman] about the goods, as to the place of their manufac-tories?” The plaintiff objected because the question called for irrelevant, immaterial and incompetent testimony, and because it was an attempt to alter or vary the terms of the written contract. The objection was overruled, and the witness allowed to answer that the salesman said, “the goods were manufactured at Providence, R. I.” Under the pleadings in the case, there was no error in overruling the objections to the question, and
Tbe court was requested by tbe plaintiffs to give tbe general charge in their favor, numbered 4, which tbe court refused to give. In this there was error.
Tbe fifth plea set up tbe defense relied on by defendants, and on which tbe case was tried, which defense they failed to establish. They failed to prove that the representation as to the place of the manufacture of said jewelry as set up in said plea, was false, and also that the alleged representation was of a material fact, without proof of which averments in said plea, the defendants failed to establish their defense.
There was no dispute as to the correctness of the account sued for, nor as to the contract for the sale of the jewelry.
We need not consider the other charge, numbered 5, asked by plaintiff.
Reversed and remanded.
