47 So. 82 | Ala. | 1908
This is an action for damages for fraud and deceit. The alleged fraud consisted in the . misrepresentation of title and ownership by the defendant of land upon which growing timber was sold by the defendant to the plaintiff. The said sale is averred in the complaint to have been made on the 26th day of July, 1905, at and prior to which time the alleged misrepresentations were made. The suit was begun on the 16th day of August, 1907. Two pleas were filed — the general issue and the statute of limitations of one year. Issue was joined on the first plea, and replication was filed to the plea of the statute of limitations, averring that the fraud was not discovered until within a year before the commencement of the suit. On this replication issue was joined.
The evidence without conflict showed that the misrepresentation or fraud, if any was committed, was discovered by the plaintiff within two or three months after the sale, and more than a year before the commencement of the suit. Indeed, this is shown by the plaintiff’s own testimony. On this undisputed evidence, the defendant was entitled to the general affirmative charge requested, which was given by the court. The defendant being entitled to the general charge under the evidence on the issue as made up on the plea of the statute of limitations, no prejudice or injury resulted to the plaintiff on other matters assigned as error on the record. — Foster v. Johnson, 70 Ala. 249; Calhoun v. Hannan, 87 Ala. 277, 6 South. 291; McLaren v. R. R. Co., 100 Ala. 506, 14 South. 405; Thompson v. Gray, 82 Ala. 291, 3 South. 38; City of Eufaula v. Simmons, 86 Ala. 512, 6 South.
Affirmed. -
