| Ala. | Nov 15, 1890
— Counts in trover and in case may be joined in one action. — Dixon v. Barclay, 22 Ala. 370" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/dixon-v-barclay-6505009?utm_source=webapp" opinion_id="6505009">22 Ala. 370; Wilkinson v. Mosely, 30 Ala. 562" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/wilkinson-v-moseley-6506040?utm_source=webapp" opinion_id="6506040">30 Ala. 562. The second count is in case. It was amended, and, as amended, was demurred to. The demurrers were overruled, and Ave think rightly. That count alleges every fact pecessary to the maintenance of the action, we think, AArith sufficient certainty. The facts alleged are, that Henry induced Allen to part with his horse, buggy and harness for the tivo notes on Barker, on false representations by him, Henry ; that when he, Allen, traded for the notes, he did not know whether Barker was solvent or insolvent, but before and at the time said trade Avas made Henry ‘‘stated to plaintff that the maker of said notes was solvent and responsible upon said notes, and able to pay off said notes at the maturity of same; ánd plaintiff relied upon the representations so made to him by defendant, and received said notes from the defendant ; . . and plaintiff avers that, at the time this occurred and these representations [were] made by defendant to plaintiff,” said Barker was insolvent, Iiénry knew him to be insolvent, and knew no money could be made out of him. The count then avers that the notes were Avorthless, and that the said representations were made for the purpose and Avith the, intention of deceiving and defrauding plaintiff. It further avers that, as soon as plaintiff learned the condition of said Barker, and that he was insolvent, he tendered the notes back to defendant, and demanded his property; that defendant refused to receive the notes, and refused to deliver the horse, buggy and harness to plaintiff. The averments of this count, if true, make a clear case of fraud and deceit, and authorized plaintiff to demand a rescission, if he made timely application therefor. — Barnett v. Stanton, 2 Ala. 181" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/barnett-v-stanton-6501423?utm_source=webapp" opinion_id="6501423">2 Ala. 181; M. & S. Railway Co. v. Matthews, 77 Ala. 357" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/montgomery-southern-railway-co-v-matthews-6512123?utm_source=webapp" opinion_id="6512123">77 Ala. 357; Jordan v. Pickett, 78 Ala. 331" court="Ala." date_filed="1884-12-15" href="https://app.midpage.ai/document/jordan--sons-v-pickett-6512245?utm_source=webapp" opinion_id="6512245">78 Ala. 331; Moses v. Katzenberger, 84 Ala. 95" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/moses-v-katzenberger--sons-6513043?utm_source=webapp" opinion_id="6513043">84 Ala. 95; Young v. Arntze, 86 Ala. 116" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/young-v-arntze--bros-6513341?utm_source=webapp" opinion_id="6513341">86 Ala. 116; Clarke v. Dunham Land Co., Ib. 220; Lockwood v. Fitts, 90 Ala. 150" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/lockwood-v-fitts-6513943?utm_source=webapp" opinion_id="6513943">90 Ala. 150.
To the second count of the complaint the defendant pleaded the statute of limitations of one year, and to this plaintiff replied that he did not learn or discover that Barker was insolvent until January, or February, 1888; less than a year before this suit Avas brought. The replication Avas a sufficient answer to the plea of the statute of limitations. — Code of 1886, § 2630; Tillison v. Ewing, 87 Ala. 350" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/tillison-v-ewing-6513542?utm_source=webapp" opinion_id="6513542">87 Ala. 350.
The question of merit in this case was not whether a fraction of the two hundred dollars evidenced by Barker’s notes could haAre been collected out of him. It was whether Henry deceived and defrauded Allen out of his horse, buggy and
Nor did the court err in refusing to give charge 3. If Henry represented Barker to be good and solvent, and Allen, relying on the representation, accepted the notes in exchange for his property, then the injury done him was not dependent on Henry’s knowledge that the represention he made was false. If it was in fact false, and Henry made it, thereby inducing the trade, the same responsibility would rest on him whether he stated a known falsehood, or made the statement recklessly, not knowing whether it was true or false. And Allen’s opportunities for knowing Barker’s financial condition was not the inquiry. Nothing short of knowledge of that condition could render harmless Henry’s false representation, if he made such representation. If Allen knew of Barker’s financial condition, that would be answer to his complaint of Henry’s misrepresentation, if he made it. His opportunities for finding it out would not be. — Authorities supra.
Charge No. 4 probably asserts a correct legal proposition, if it had testimony to base it on. The bill of- exceptions affirms that it contains the substance of all the testimony, and the most liberal interpretation we can give to it tends to show that only a part — probably a very small part of the claim — could have been collected. We have shown above that such partial collection, or means of effecting it, would be no defense to this action. We hold there was no evidence to justify this charge, and it was rightly refused on that account. — 3 Brick. Dig. Ill, §§ 74, 75, 777
The evidence tends to show that plaintiff visited defendant, and asked him to rescind the trade; and that defendant positively refused to do so. This, if believed, dispensed with the necessity of a formal tender before suit brought. — Dill v. Camp, 22 Ala. 249" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/dill-v-camp-6504999?utm_source=webapp" opinion_id="6504999">22 Ala. 249. Charge 6 was rightly refused. It is very true that, in a case like the jjresent, where a rescission of a contract of bargain and sale is‘claimed on account of deceit or fraud, the party complaining must put the adversary in statu quo. It was Allen’s duty to have the notes in court, and to tender them to Henry, before recovering judgment for the conversion of his property! — Jones v. Anderson, 82 Ala. 302" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/jones-v-anderson-6512790?utm_source=webapp" opinion_id="6512790">82 Ala. 302; Nichols v. Michael, 23 N. H. 264; Hawthorne v. Hodges, 28 N. Y. 286; Pequeno v. Taylor, 38 Barb. 375" court="N.Y. Sup. Ct." date_filed="1862-11-03" href="https://app.midpage.ai/document/pequeno-v-taylor-5460479?utm_source=webapp" opinion_id="5460479">38 Barb. 375; Spencer v. St. Clair, 5 N. H. 9; Hough v. Hunt, 15 Amer. Dec. 569, note p. 595; Perley v. Balch, 34 Ib. 56, note. The record, however, presents no ruling on tjiis question, and we suppose this require
Affirmed.