Hooper v. Whitaker, 130 Ala. 324

Hooper v. Whitaker

130 Ala. 324 | Ala. | 1900

TYSON, J.

Under the “act,' to provide ways and means to meet war expenditures and for other purposes,” approved June 13, 1898, an unstamped note is not competent evidence in any court. By the provisions of this act the maker of the note is required to affix the necessary revenue stamps before issuing it. But when he fails at a time when or a place where no collection district was established, it is lawful for any party having an interest in the note to affix the proper stamp thereto. 30 IT. S. Stat. at Large, § § 7, 13, p. 452.

The note sued on had the requisite value of stamps affixed, but eighteen centsi of the twenty cents, were affixed by the payee without the knowledge or consent of the maker, after the note was issued and delivered to him.

Many of the courts hold that the provision of the act excluding instruments from evidence is inapplicable to State courts. See note to Knox v. Rossi, 48 L. R. A. 305, where all the authorities are collated and commented on. A decision of that question, however, is not necessary here. In the absence of proof of an intent io defraud the government by failing to affix the requisite value of stamps, the note was properly admitted in evidence.—Bibb v. Bonds, 57 Ala. 509; Perryman v. Greenville, 51 Ala. 507; Whigham v. Pickett, 43 Ala. 140.

Plaintiff and defendant were partners in the retail liquor business, and the consideration of the note sued on was for the plaintiff’s interest in the business. The *331main defenses interposed were false representations made to defendant which induced him to make the purchase and to execute the note to his damage, which he seeks to recoup: These defenses are set up in three pleas, designated as pleas No. 7, A. and B.

The false representation alleged in plea 7 is that plaintiff represented that there was enough cash in the Bank of Huntersville belonging to the firm to pay its debts.

In A. the allegation is that plaintiff represented that then were goods belonging to the firm, at invoice prices, amounting to eighteen hundred dollars.

In B, it is alleged that plaintiff warranted that the firm owned and had in stock, goods amounting at the invoice price to eighteen hundred dollars, and that he (defendant) was ignorant that the warranty was false.

Before stating the tendencies of the evidence and the principles of law governing the case, it will be well to note that each of the foregoing pleas is predicated upon an affirmation of a fact by plaintiff which isi alleged to be false, in contradistinction to >an opinion. Issue was taken upon them, and the numerous charges to which exceptions were reserved, must be tested by the issues presented by these pleas in connection with the evidence. The rule of law governing such cases is, that it is not material whether the vendor knew or had means of knowing the statement of fact to be untrue or that he made it in ignorance of the fact, if the purchaser relying upon it was induced by the representation to make the transaction. And when sued for the purchase price, he may retain the property, and avail himself of the damages he lias suffered by making proof of its real value and abate the recovery pro tanto. Obviously the representations must be of a material fact, upon which the defendant had the right to rely and did rely. If he knew of their falsity, no fraud was practiced upon him. He cannot be said to have been deceived or injured by them; for deception must, have been practiced and injury must have resulted to him on account of his reliance upon them in ignorance of their falsity. And the burden of proof was upon him to establish not only the representations as laid in his pleas, but their falsity to his in*332jury. While it is doubtless true that a mere opportunity to know the truth or falsity of the statements made to him, will not relieve the party making the representations, if materially false and relied upon, from the consequences of his deception, it is, nevertheless, true that the party complaining of the fraud, cannot refuse to consult his own knowledge of the condition of the subject-matter of the sale and purchase. If by reason of his familiarity with the condition of the business he was purchasing he knew the statements were false or had reason to believe they were untrue, and no deception was practiced so as to mislead him from consulting his own knowledge of its condition, he was not deceived. Tabor v. Peters, 74 Ala. 90; Brown v. Freeman, 79 Ala. 406; Moses v. Katzenberger, 84 Ala. 95; Pacific Guano Co. v. Anglin, 82 Ala. 492; Sledge v. Scott, 56 Ala. 202; Atwood v. Wright, 29 Ala. 346.

For the purpose of applying these principles to the charges, and the exceptions reserved to the introduction of evidence, we will state in short some of the testimony as shown by the record. Plaintiff and defendant were partners in the retail liquor business, and the partnership had been in existence for some eight or nine months. While the plaintiff was, under the partnership agreement, to manage the business, the evidence un-disputedly shows that defendant assisted in the conduct and management of it, had access to and made entries upon the books of the firm, sold liquors to customers and purchased goods for the concern. He was, under the agreement, to sign all checks drawn upon their bank, which was named in the agreement. He had access to the cash drawer where the bank pass book was kept. Only a short time prior to the giving of the note sued on, he was fully informed as to the condition of the partnership affairs — this information having been acquired through an accountant, assisted by him, em-pliyed for that purpose. He was familiar with the liquor business, having been engaged in it for the twelve or fifteen years. The transaction which resulted in the purchase of his partner’s interest in the business for which the note sued on was given, was initiated and consum*333mated in their place of business. The stock of goods and the books of the firm were there. While it is not shown that he made an examination of either, he had the opportunity to do so. The fact that the books were there, was a circumstances to go to the jury upon the question of the probability of whether or not plaintiff made the misrepresentations relied upon in the pleas. However, if the statements as averred in defendant’s pleas were made to him which he testified were made, and he was ignorant of their falsity, he had a right to rely upon them, and were under no duty to examine the books for the purpose of ascertaining the truth or falsity of these statements. The plaintiff denied making the representations, but testified that “he and defendant together estimated that their stock on hand would amount to about $1,800; * * * that he never told defendant there was enough money in bank to pay the debts of the firm; * * * that he did tell Hooper that the amount of money in bank was $300 to $500.” It is scarcely necessary to say that if the testimony of the plaintiff was true, the defendant has not proven the averments of his pleas. But independent of this, the evidence showed that the amount of money in bank was more than $300 and less than $500, so then this representation was not false if the testimony of plaintiff is true, and if the estimated value of the stock of goods was arrived at in the manner as stated, there was no fraud or false warranty. We have only to make an application of the foregoing principles and facts to the charges in order to determine their correctness or incorrectness.

Charges 1 and 4 given at the request of plaintiff were proper.

Charges 2 and 3 were calculated to mislead the jury to the conclusion that plaintiff was entitled to recover, notwithstanding the jury may have believed his statement was false and not known by defendant to be false, as to the value of the stock of goods, if he made it. In other words, they were, in effect, a direction to the jury that they must be reasonably satisfied that all the statements, if made, of plaintiff’s were false and fraudulent, whereas one may have been and the others not.

*334Charge 5 was bad for predicating a determination of the character or nature of the representations alone upon the intention of the plaintiff, without regard to their form or how defendant may have understood them.

Charges A, C and E requested by defendant ‘should have been given.

Charges B,. D and Gr were properly refused. They each make reference to a representation a® to the amount of the accounts belonging to the firm. This statement was not invoked as a defense in any of the pleas.

Charge P was so manifestly improper, it is unnecessary to comment upon it.

Reversed and remanded.