Commercial Finance Co. v. Cooper Bros.

| Ala. | Apr 13, 1916

ANDERSON, C. J.

(1, 2) It is, no doubt, true that W. E. Cooper had no right to testify as to what articles he bought if the contract contained the true articles and was such a contract as was binding upon Cooper Bros.; but the defendants’ evidence shows that the contract signed was not the one made by the defendants,’and was signed upon the misrepresentation of the salesman Brown; therefore the witness W. E. Cooper had the right to tell what articles he purchased, and Brown represented to him that the contract covered said articles instead of the ones shipped. A contract executed by one in reliance upon false representations as to its contents is not binding upon the party deceived if he elects to avoid it, although he could read and had an opportunity to read the said contract before signing same.

“A party asserting facts cannot complain that the other took him at his word.”—Shahan v. Brown, 167 Ala. 534" date_filed="1910-05-13" court="Ala." case_name="Shahan v. Brown">167 Ala. 534, 52 South. 737; Moline Jewelry Co.,v. Crew, 171 Ala. 415, 55 South. 144.

The trial court did not err in permitting W. E. Cooper to testify what articles he contracted to purchase, which was relevant in connection with the other evidence going to show that the contract signed did not speak the truth and was not binding upon the defendants. For the same reason there was no error in admitting the showing of the witness Mitchell, who heard the trade between Cooper and the salesman Brown, and who corroborated W. E. Cooper.

The trial court did not err in the conclusion upon the facts, as the defendants’ evidence, which was practically uncontradicted, showed that the contract was not the one they made, and' was not therefore binding, and they did nothing to estop themselves from setting up its invalidity by retaining the goods or otherwise.

The judgment of the city court is affirmed.

Affirmed.

McClellan, Sayre, and Gardner, JJ.5 concur.