119 So. 685 | Ala. | 1928
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *686 The fifth count of the complaint, in substance, avers that T. A. Yeend and Yeend Bros. Realty Company, Inc., acting by and through its president, T. A. Yeend, were the duly-authorized agents of the defendant to rent the property in question, and that said agents, while acting within the line and scope of their employment as agents of the defendant, and in and about the business of the defendant, asserted to plaintiff's agent as a truth, and as an inducement to the plaintiff to rent the premises, that there was an elevator in said premises that made the second and third floors of the building accessible for plaintiff's use; that the plaintiff relied on said representation, and without inspecting the property executed the lease, and in fact there was no elevator in said building, as represented by said agents.
The appellee's contention is that the demurrers to this count were properly sustained; that, for plaintiff to maintain an action for deceit, he must aver and prove, not only that the representation was false, and made as an inducement to making the contract, but that it was expressly authorized by the defendant, or made with his knowledge and consent, and, if it relates to an obvious fact open to ordinary observation, though not true, the doctrine of caveat emptor applies, and denied to the plaintiff the right to rely on the representation.
The rule that holds the principal liable for his agent's fraud, tort, or negligence, though committed without the principal's participation or consent, if it is done in the course of his employment, and is not a willful departure from it, is one of general acceptation and sustained by the great weight of authority, and, as to third persons affected by the agent's acts or words, it is sufficient if he acts within the apparent scope of his authority. Johnson v. Barber, 5 Gilm. (Ill.) 425, 50 Am. Dec. 416, and note; Griswold v. Gebbie,
And " 'it is as much a fraud at law to affirm as true what is untrue, though not known to be so, as to assert what is known to be untrue. The law imposes the duty of ascertaining the truth of the statement before making it, and demands in case of omission that the representation shall be made good.' * * * The principle is, that one, in negotiating a trade, shall not recklessly, or even innocently, assert as fact that which is untrue, if such asserted fact be to any extent an inducement to the other party to enter into the contract." Ball v. Farley, Spear Co., supra; Munroe v. Pritchett,
Such fraud, if it results in damage to the party deceived thereby, will support an action for deceit, whether the transaction in which it is committed relates to personal or real property. Sledge v. Scott,
The doctrine of caveat emptor is not applicable where the party injured is induced *688
by the fraud of the other party to act without inspection of the property, the subject of the transaction. 35 Cyc. 68, Par. II; Stewart v. Wyoming Ranch Co.,
After due consideration, the opinion prevails that count 5 was not subject to the stated grounds of demurrer, and that error to reverse was committed in sustaining the demurrer.
We are further of opinion that the other counts of the complaint were subject to some of the grounds of the demurrer, and therefore the demurrers to these counts were sustained without error.
Reversed and remanded.
ANDERSON, C. J., and SAYRE, GARDNER, BOULDIN, and BROWN, JJ., concur.
FOSTER, J., not sitting.
Dissenting Opinion
The original complaint in one count for assumpsit had demurrer sustained on April 13, 1927. Thereafter there were several successive counts to which demurrers were sustained. Appellee insists there was final disposition of the cause by the judgment sustaining demurrer to the fifth count, which was in case for deceit, and was the only count to the complaint. This judgment was rendered October 15, 1927; at the expiration of 30 days did it become final? The purported final judgment rendered February 4, 1928, recited the failure of amendment, declination to plead further, and judgment "for defendant" awarding him "all costs in the cause created." And on February 17, 1928, the plaintiff appealed from the judgment heretofore rendered in said cause in favor of the defendant. Appellee cites several authorities in support of the finality of the judgment entered of date of October 15th. We shall examine these decisions on that question.
In Perkins v. Moore,
"A judgment on a general demurrer to a declaration is a judgment on the merits, and conclusive upon a subsequent action for the same cause."
This announcement was in consideration of a plea of former judgment, when there was judgment for the defendant on general demurrer to a declaration stating the same cause of action and breach, and held a "good bar" to subsequent action for "substantially the same" cause.
At the time of this decision, there was recognized the general demurrer at law. At common law the amendments allowable being for "variations in pleadings, * * * in order that an explanation may be given of a step taken." Will's Gould on Pleading, pp. 105, 106, 125, 587. And the matter concluded by demurrer under the rule of the common law is thus stated:
"On demurrer to any of the pleadings, which go to the action, the judgment, for either party, is the same as it would have been, on an issue in fact, joined upon the same pleading, and found in favor of the same party. * * * A judgment, rendered upon demurrer, is equally conclusive (by way of estoppel) of the facts confessed by the demurrer as a verdict, finding the same facts, would have been, since they are established as well in the former case, as in the latter, by matter of record. And facts, thus established, can never afterwards be contested, between the same parties, or those in privity with them." Will's Gould on Pl. pp. 587, 588.
Such was the rule of the common law, and such was the decision on res judicata in Perkins v. Moore,
That "relators declined to amend the information, and final judgment was entered in favor of the respondents"; that said former ruling was "upon the merits"; that the "judgment rendered was tantamount to one upon the merits on a final submission."
In this we find an application of the rule on the subject of res judicata, where a "mutual estoppel" is the result of the adverse ruling as to the parties and the rights in the subject-matter that has remained unchanged. Clark v. Whitfield,
The case of Watson v. Jones Bros.,
In Terry v. Allen Bros.,
That the "demurrer to that complaint is sustained, and, ifplaintiff declines to amend, judgment final must be renderedagainst him."
Thus he indicated a difference between such ruling at law and in equity. In one an appeal may be taken from the ruling on demurrer, while in the other the ruling may not be reviewed until there has been a final judgment.
In the case of Ex parte Highland Ave. Belt R. Co.,
The "end of 30 days after final judgments and decrees * * * as to them is thereby made the end of the term of the court, and thereafter * * * has no * * * power or control * * * [as] if the term had finally adjourned."
Recent decisions at law following the decision in Ex parte Highland Ave. Belt R. Co., supra, are Morris v. Corona Coal Co.,
In the case of Smith v. L. N. R. Co.,
"The right to review accorded by the statute is of the adverse ruling creating the necessity for taking nonsuit, but the period within which appeal must be taken (six months) commences when the nonsuit is taken."
And of the Smith Case, supra, it is insisted by appellee's counsel:
That there is a material difference "between a judgment sustaining demurrers to only one count in a complaint and a judgment overruling demurrers to three of five pleas pleaded to a complaint; * * * that as long as there is no complaint in the cause there is no cause pending in which a trial can be had; * * * that so long as the cause stands at issue upon a good complaint and five pleas (as was the pleading in the Smith Case, supra) it has not been finally disposed of."
This striking observation makes necessary a further consideration of our cases.
In Lide v. Park,
These rulings are in accord with the requirements of the statute, which are as follows: (1) Provision for execution after the "lapse of 10 days from the rendition of a judgment or decree," thus presupposing a finality of the matter to "execution" for amount or costs; (2) and the declaration that after the lapse of 30 days from date on which judgment or decree was rendered the court shall lose power over it; (3) unless motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and due order of continuance entered. Section 6670, Code of 1923. The statute was noted in the recent case of Ex parte U.S. Shipping Board Emergency Fleet Corp.,
In Ex parte Bozeman,
Again, in Ex parte L. N. R. Co.,
A final judgment is that which determines the material issues of fact and law litigated or necessarily involved in the cause; determines the legal rights of the parties and the principles by which such rights are to be worked out. Adams v. Sayre,
And in Herstein v. Walker,
That "it makes no difference that the ruling was on demurrer"; that "when a demurrer is sustained, or overruled, and a final decree suffered to be rendered, without asking leave to amend or reply, as the case may be, and the term of the court is permitted to expire; this is, to all intents, a final decree on the questions raised, or which could be raised on the proceedings."
Be it remembered that in equity the words by Judge Stone as to the procedure after ruling on demurrer, were:
"And a final decree suffered to be rendered, without askingleave to amend or reply," "and the term of the court is permitted to expire," — the losing party is "without remedy save by appeal, or, in a proper case, by bill of review."
After judgment on demurrer the court must permit, pursuant to the statute, amendment of the pleadings, "and such amendment must cause no delay in the trial of the cause," and must not be productive of injustice to the opposing party. Section 9516, Code. "The party against whom a judgment on demurrer * * * is rendered may plead over as a matter of right, without waiving his privilege of assigning such judgment as error in an appellate court," unless he later has the benefit of that pleading. Section 9517, Code. That is to say, the proper practice for the party against whom a judgment on demurrer or plea in abatement is rendered is: either to (1) decline to plead further and suffer judgment from which an appeal lies, and duly reserve his right of review; or (2) amend, by pleading over, as a matter of right, without waiving the privilege of assigning the former judgment as error on this appeal. Steele v. Booker,
"The plaintiffs did not seek to take advantage of this statute. There was no attempt or offer by them to plead over after the sustaining of demurrers to the complaint, nor offer to amend, nor did they expressly decline to plead further and suffer judgment for the defendants, from which they could have appealed, but they simply declined to take any further action, and, as appears by the record, the complaint not being amended and no offer being made to amend it at a subsequent call of the case, the cause was dismissed for want of prosecution. This order dismissing for want of prosecution is such a final order or judgment as will support an appeal. However, on an appeal from such order nothing can be revised by this court except the action or order of the trial court in dismissing the cause for want of prosecution; yet on an appeal from such order or judgment the actions of the court in sustaining or overruling demurrers to the complaint or other pleadings prior to this action cannot be reviewed. The case is not within the provisions of section 5370 of the Code [1907] but for which theaction of the court in sustaining or overruling demurrers tothe complaint could not be reviewed after an amendment of the complaint, and certainly the order or judgment dismissing the cause for want of prosecution is not a judgment against the defendants for failure to plead further which would authorize a review of the action of the court in sustaining or overruling the demurrers. Wailes v. Howison,
The order of the court of date of October 15, 1927, was that setting aside former order sustaining demurrer to count 5 of the complaint (the only count in), for resubmission of old and new grounds of demurrer for consideration, and judgment that the original demurrers (filed July 16, 1927) and amended demurrers (filed September 12, 1927) "to the fifth count of the complaint be, and the same are hereby sustained." It was the only count before the court; there was no effort or request to plead over. The record is silent until February 4, 1928, when judgment was entered that, on account of the adverse ruling of the court on the pleading, the plaintiff declines to plead further, judgment is rendered for defendant, and he was ordered to go hence, and have and recover his costs against the plaintiff, for the recovery of which let execution issue. All of the Justices have agreed that this was the final judgment in the cause, from which the appeal was duly taken. It presents for review the rulings on demurrer to the several counts of the complaint, and we will consider the same, since *691
it was "to suffer a nonsuit" and an appeal upon the record as is provided by statute. Section 6431, Code; Berlin, etc., v. Ewart,
It is the generally accepted rule that, when real property is leased, "it is taken as it stands," under the doctrine similar to that of caveat emptor, without special covenant by the owner or his authorized agent, to the making of repairs or improvements ("the lessee's eyes are his bargain," Adler v. Miller [Ala. Sup.]
It follows, from the reason of the decisions, that the extent or authority of lessor's agent to lease the premises cannot be presumed to imply authority to that agent to represent that of which the lessee had or was charged with knowledge. Pertinent authorities are: Moore v. Barber Asphalt Paving Co.,
In Charlie's Transfer Co. v. Malone,
In Brown v. Dwight Mfg. Co.,
In Anderson v. Robinson,
"That the landlord is not liable in tort for injuries to said class [tenant, family, servant or guest], whether there be a covenant to repair or not, unless the defects existed at the time of the letting, were known to him, and which he concealed from the tenant."
And in Hafer v. Cole,
We will illustrate by the cases as to the sale of personal chattels. The decisions *692
touching implied and ostensible authority of an agent for the sale of personal property to warrant, are collected in L.R.A. 1916C, 413 et seq. The majority view, and that of this court, is to the effect that an agent to sell personal property "has the power to warrant the article, if it be one that is usually sold with a warranty, and to bind his principal by such warranties as are customary or usual in the sale of such property." Skinner v. Gunn, 9 Port. 305, held there was implied warranty of soundness of slaves; Bradford v. Bush,
"The agent has power to bind his principal in the sale of a chattel usually sold with a warranty, in the absence of instructions to the contrary, brought to the attention of the purchasers." Herring v. Skaggs,
There are other cases cited illustrating the general rule and exceptions thereto as to implied authority to bind. In Troy Groc. Co. v. Potter Wrightington,
Another class of cases of implied warranties is where the buyer orders machinery or goods to be supplied by the vendor, and purchaser trusts to the latter's superior opportunity, experience, and judgment to procure and select that which is fit and suitable for the known and intended purpose of the vendee; in such case the seller is bound by the agreements of his agent. Philips B. Mfg. Co. v. Wild Bros.,
The Caffey Case is typical as an exception to the general rule (Baker v. Clark,
The rule of nonliability of landlord, by way of implied authority of the agent to represent the real property and building other than it is, should not be confused with the implication of authority to warrant, within the rule, when the sale is that of personal chattels usually accompanied with warranty. The rule as to the renting of real property and the lack of implied authority or obligation to bind the landlord to repair and subject him to damages for the failure thereof, is well stated by the Chief Justice in Morgan v. Sheppard,
In the case for decision, the absence of an elevator was obvious and discoverable on casual inspection of the premises by plaintiff's agents acting for it. In the absence of an elevator, the installation of such part of the building would have been in the nature of substantial improvements and additions to said real property, and the agent of lessor had not the implied authority to bind the *693
principal by representations, as to an elevator which were at variance with the obvious fact and condition of the building let. Such obvious fact, being disclosed to the lessee by casual inspection, showed the matter within the general rule of nonliability, in the absence of specific contract by the landlord. It was not within one of the recognized exceptions to the rule, as that of a special covenant, or a latent defect, or nuisance concealed, created, or permitted by the landlord. Morgan v. Sheppard,
In the several counts for deceit the plaintiff sought to "form a contract" and seek recovery for damages under our several statutes for fraud and deceit. §§ 5677, 7353, 7354, 8049, Code.
Count 4 was indefinite. There was the lack of averment of the name of respective agents through whom both parties acted, and it was not averred that the names of said agents were not known to plaintiff. Williams v. Bedenbaugh,
If lessee was deceived by the misrepresentation of obvious fact by lessor's agent, the right of an election was presented (1) to rescind the contract, or (2) to maintain his suit for the fraud or actionable misrepresentation. Having proceeded ex delicto (rather than in assumpsit), he must bring his action for deceit within the requirements of that pleading. It is not averred that defendant had a knowledge of the nature and extent of the alleged representation of said agent as to the obvious physical condition of the building, and that it contained an elevator; it is not averred that said representation was expressly authorized by plaintiff, or that the latter did any act, gave any word of assent or ratification of the act or representation of the agent, or that defendant landlord fraudulently or recklessly made or authorized such representation to be made to plaintiff. This much would have been necessary for plaintiff to have proceeded in assumpsit fora breach of the contract. Wilkinson v. Moseley,
The count for deceit does not present a case within "fraudulent deceit," as later defined by statute (sections 7353, 7354, Code), in the failure to aver such guilty misrepresentation, knowledge, or suppression of fact, or promise not intended when made to be kept or performed. In Ala. Mach. Sup. Co. v. Caffey,
"Under section 5677, knowledge or its equivalent with intent to deceive is required, but in such case the scope of liability is extended to cases of concealment. Griel v. Lomax,
This case does not consider requirements for deceit contained in sections 7353, 7354. And in Edmundson v. Mullen,
"Misrepresentations of material fact, though made by mistake and innocently, if acted upon by the opposite party, constitute legal fraud. Code, § 8049. It is not necessary to aver an intent to deceive as in actions of deceit under Code, § 5677,"
— and rests that decision upon "common counts in assumpsit."
The cases further cited are not to the contrary. In Byars v. Sanders,
That it was "an action for deceit;" that fraud was an element; that "the cases cited and relied on by the appellant — Cox v. Collins,
There the complaint was sufficient.
In Munroe v. Pritchett,
"To constitute such misrepresentation a ground of fraud for avoiding the contract, or to entitle the injured party to his action, it must be, as we have said, in regard to a material fact, operating as an inducement to the purchase, and upon which the purchaser had a clear right to rely, and the party complaining must have actually been deceived thereby; and generally, such representation must not be mere matter of opinion, or in respect of facts equally open to the observation of both parties, and concerning which the purchaser, had he exercised ordinary prudence, could have attained correct knowledge. If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, 'volenti non fit injuria.' "
In Harton v. Belcher,
"Plaintiff's representation, if false as it was alleged to be, was fraudulent by construction of law, and for its injurious consequences he was answerable. King v. Livingston Mfg. Co.,
He makes the same quotation from Munroe v. Pritchett, supra, saying that section 2469, Code of 1907 (the same as section 5677, Code of 1923) and sections 4298, 4299, Code of 1907 (same as section 8049, Code of 1923), are merely declaratory of the law as previously laid down in the decisions of this court. The pleadings in the cases cited in the last-named opinion were bills for discovery and relief by a stockholder in a corporation, for rescission of the sale of land, and in an action in assumpsit.
And into conformance to the several preceding cases, in the Code of 1923 were inserted sections 7353, 7354, defining fraudulent deceit. These statutes were not considered — merely cited — in the Caffey Case, supra, a suit for deceit. This last statute, in short, defines fraudulent deceit to be: One who willfully deceives another to induce him to alter his position to his injury or risk is guilty of "fraudulent deceit," and a deceit, within the meaning of section 7354, is either: "(1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the assertion, as a fact, of that which is not true," without "reasonable ground for believing it to be true"; (3) suppression of a fact when one "bound to disclose," etc.; (4) a promise, made without any intention of performing it. Likewise, as to this statute, the observation of Mr. Justice Bouldin in Edmondson v. Mullen,
Such were the averments in the count for deceit upheld by Mr. Justice Brown in Byars v. Sanders,
The matter may be concluded by the two observations: (1) The doctrine of caveat emptor applies to a lessee making a contract as indicated; the lessee is presumed to know the fact and dealt with the other as knowing the character of the building and equipment in so far as was obvious; that authority by the lessor to an agent to lease cannot be presumed to imply authority to warrant, or to represent that which is obvious and that which the lessee had or is chargeable with knowledge. Charlie's Transfer Co. v. Malone,
An action of assumpsit is ex contractu and arises from a breach of promise; and action ex delicto, as deceit, arises from and rests upon a breach of duty growing out of the contract. Adler v. Miller (Ala. Sup.)
I am of opinion that the case of Cartwright v. Braly, supra, went too far and did not properly apply or interpret the statutes for deceit, and should be modified or overruled. I am in disagreement with the announcement, for the reasons I have stated, that count 5 was sufficient for deceit.
I agree that demurrers to the counts in assumpsit were properly sustained. It is not possible to indulge the construction that said elevator in the building meant another elevator, or power to propel it, not then installed as part of the building. If, as appellant claims, there is no elevator without its propelling power, what should be said of the allegation of the count that Gulf Electric Company "has the privilege of the use of said elevator in said building," under the insistence that there was a breach of contract, in that "said elevator * * * had no motor or other motive power." The insistence of appellant as to the assumpsit counts is not well founded, under the clause of the lease set out. There is averred no duty or obligation on lessor's part to furnish motive power for the elevator.
Counts 2 and 3 are substantially the same. It should be said, as to count 2, that it is the same as count 1, with the exception that in the first count the breach alleged is the fact that at the time the lease was executed the elevator had no motive power, while in the second count the breach alleged is that there was no elevator in operating condition. In this there is no material difference. In counts 2 and 3 it is alleged that plaintiff could not use the second and third floors for the purpose indicated, without the use of an elevator; that as an inducement defendant's agent represented that the building contained an elevator in operating condition; that it was a representation by defendant's agent within the line and scope of his agency; that the building contained an elevator in operating condition, and but for said covenant or representation plaintiff would not have leased the premises. This is not sufficient to declare the authority of the agent to contract and impose upon the landlord the contract duty to furnish or install an elevator, equipped for operation with the motor power for its propulsion.
I am of opinion that the demurrers to counts 1, 2, and 3 were properly sustained.
