Harton v. Belcher, 70 So. 141

Harton v. Belcher

70 So. 141 | Ala. | 1915

SAYRE, J.

To an action on a promissory note, which he had given to secure, in part, payment of the purchase money for a certain large tract of timber land, defendant (appellee) pleaded two pleas of recoupment, numbered 16 and 17 in the record, and on these pleas had .a recovery over against plaintiff, who thereupon took this appeal alleging that the court erred, inter alia, in overruling demurrers to these pleas.

(1) The objection taken to these pleas in the brief for appellant is that they fail to show that plaintiff knew that he was pointing out to defendant lands other than those in reference to which the parties were negotiating and which were described in the conveyance subsequently executed. The representation alleged in the pleas was of manifest materiality; the purchasing defendant had a right to assume that the plaintiff knew the boundaries of the land he was undertaking to point out for the purpose of making a sale; and the pleas alleged, in substance, that *190defendant was by such representation deceived and defrauded. In such circumstances it. was of no consequence that, as for aught alleged in these pleas, the misrepresentation complained of may have been mistakenly made in good faith. 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., 180 Ala. 118, 60 South. 143; Shahan v. Brown, 167 Ala. 534, 52 South. 737; Tillis v. Smith Sons Lumber Co., 188 Ala. 122, 65 South. 1015.

“He who affirms either what he does not know to be true, or knows to be false, to another’s prejudice and his own gain, is, both in morality and law, guilty of falsehood, and must answer in damages.” — Munroe v. Pritchett, 16 Ala. 785, 50 Am. Dec. 203.

This has long been the law of this state, and we are of opinion that no change in its has been effected by section 2469, 4298, or 4299 which appears for the first time in the Code of 1907. These sections are considered to be merely declaratory of the law as it had been previously laid down in the decisions of this court.

(2) Nor were the pleas defective in failing to show that defendant’s cause of action therein alleged was not barred by the statute of limitation. Defendant’s claim sprung out of the contract between the parties and affected the considerations moving between them; it ran with the contract, so to speak, and, so far at least as it went to the consideration, as it did in the case here, defendant might rely on it without regard to the stat•ute of limitation. So long as the contract, upon a breach of which the claim is predicated, subsists, and may be enforced, the claim itself may be pleaded in reduction, at least, of the demand on the contract; and this notwithstanding the matter of recoupment, independently considered, may be barred, not only when it is pleaded, but also when the right of action, against which it is asserted, accrued. — Conner v. Smith, 88 Ala. 300, 7 South. 150.

(3) Plea “B,” setting up a failure of consideration, was on its face a good plea, and the demurrer to it was properly overruled. Unlike the plea held bad in the case cited by appellant (Noble v. Anniston National Bank, 147 Ala. 697, unofficially reported in 41 South. 136), this plea alleged the facts on which *191the defense was based and showed their connection with the cause of action alleged in the complaint.

(4) We cannot, as a matter of course, look to the evidence, as appellant has done, to discover whether the plea was well-grounded in fact. That was not a question to be raised by demurrer.

The judgment is affirmed.

Affirmed.

Anderson, C. J., and McClellan and Gardner, JJ., concur.