Brenard Mfg. Co. v. Pearson

106 So. 171 | Ala. | 1925

Appellee's effort in plea 2 was to allege fraud in the procurement of the agreement which formed a part of the contract in consideration of which he executed the promissory notes in suit — fraud in that appellant's agent misrepresented the contents of the paper writing witnessing the agreement. The plea contains the elements of a good defense. Brenard Mfg. Co. v. Cannon, 209 Ala. 626, 96 So. 760. The plea had faults, it will not be denied. It was prolix to a degree; it undertook to state the evidence; it was not as clear in any respect as it might have been; but not by demurrer or otherwise were its defects pointed out or distinctly stated as the statute requires. Code 1923, § 9479.

Nor was there error in sustaining appellee's demurrers to the several replications filed by appellant. In the presence of the charge of fraud contained in plea 2, it was obviously futile to allege that appellant, the payee named in the notes in suit and a party to the alleged fraud in their procurement, was a bona fide holder without notice. True, the transaction in question was negotiated between appellee and an agent of appellant; but appellant, seeking to enforce the contract, is bound by what its agent did in its procurement. Nor is it of any consequence that the alleged agreement contained a stipulation that it could not be countermanded. Fraud vitiates everything, that stipulation, as well as the rest of the alleged contract.

There was no error in the ruling by which the court admitted the evidence in support of the plea. The fact that the agreement was in writing did not preclude the admission of parol evidence of the fraud or misrepresentation alleged in the plea. Brenard Mfg. Co. v. Jacobs, 202 Ala. 7, 79 So. 305.

The evidence was in conflict as to the misrepresentation alleged and appellant's requested affirmative charge was properly refused. It may be hard to believe that appellee was deceived as he alleges, but that was primarily a question for jury decision, nor has that decision been brought here for review by a motion on the ground that it was against the great weight of the evidence.

We have no recourse but to order an affirmance.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.