53 So. 797 | Ala. | 1910
Plaintiff (appellee) sued for the recovery of a sum of money which he had paid to defendant on a contract for the purchase of the furnishings then and since in the Capitola Hotel, which defendant had been keeping, and which along with its furnishings, went into the possession of the plaintiff upon the agreement of sale. The allegation was that the sale bad been
Pleas A and B reiterate the contract and plaintiff’s payment of money thereon, and alike proceed: “Thereafter the plaintiff, on, to wit, July 20, 1908, discovered and learned that the defendant did not own all of said goods, wares, and furniture mentioned in said contract and agreed to be sold as aforesaid, and was not the owner of the following goods, wares, and furniture mentioned in said contract, to wit” (setting out those articles which the defendant was alleged not to own). Plea A concludes: “And plaintiff, with full knowledge of said facts, continued to hold and to keep all of said property mentioned in said contract, and exercise dominion over the same as his own, and continued so to do up to, to wit, May 5, 1909, the time of the bringing of this suit.” Plea B concludes : “And the defendant further avers that the plaintiff, with full knowledge of
It appears of record that demurrers to these pleas were sustained, but the grounds of demurrer are not shown. It must therefore be presumed that their defects, if any, were pointed out ore tenus. — Central Railway v. Henderson, 152 Ala. 203, 44 South. 542; Hodge v. Tufts, 115 Ala. 366, 22 South. 422.
It is to be observed that the pleas in question do not deny that a large specified part of the furnishings he-
The complaint, undertaking to set out the facts upon which his alleged right of rescission rested, had alleged, properly, that the offer to rescind had been made within a reasonable time after discovery of the misrepresentation, and, in view of the fact that plaintiff had retained possession of the property, instead of abandoning it, as he might have done, it appropriately undertook to refute any presumption adverse to the 'completeness and continued efficacy of the offer to rescind by averring that at all times subsequently the property had been subject to defendant’s order — this last to show that the tender had been kept good. In Garrard v. Zachariah, 1 Stew. 272, it was held that a plea of tender of specific articles need not allege a continued readiness on the part of the defendant. But since the Code of 1852 it has been the law that if the tender be of ponderous articles, or other personal property, the plea must aver a readiness to deliver. — Code 1907, § 5334. The same rule must obtain where a tender is a condition precedent to an action. The property here was not at all times subject to defendant’s order, within any just meaning of that phrase of the complaint, if plaintiff had at any time during the period covered treated it as his own. Perhaps it may not inaptly be said, also, that the offer to rescind was not made seasonably, or within a reasonable time, as the complaint puts it, if delayed until after plaintiff, with knowledge of the alleged fraud, had exercised dominion over the property as his own.
Assuming, then, that the averments of the pleas were adequate for the purpose intended, namely, that the plaintiff tortiously exercised acts of ownership over the property after learning of the alleged fraud, both be
No other rulings are assigned for error.
Affirmed.