67 So. 754 | Ala. Ct. App. | 1915
The general rule as to the measure of damages, when a person is injured by the false and fraudulent representations of another, is, as stated in the first authority cited below and borne out by the others, this: “He is entitled to recover all the damages which were within the contemplation of the parties, or which, though not within the contemplation of the parties, were either the necessary or the natural and proximate consequences of the fraud; and he can recover nothing more than this, unless the circumstances were such as to render the other party liable in exemplary damages.”- —14 Am. & Eng. Ency. Law (2d Ed.) 177-179; 20 Cyc. 130 et seq.; 8 Am. & Eng. Ency. Law (2d Ed-.) 640 et seq.; 13 Cyc. 28 et seq.
And by the great weight of authority, where the fraud relied on consists of false representations as to the quality of personal property which induced its purchase, and where there has been no rescission of the contract, and the purchaser retains the property, the measure of his damages, in an action of deceit for such fraud, is, in ordinary cases, the difference between the value of the property at the time of the sale and what its value would
In some cases, however, this rule is not applicable. It. does not apply in any case when the difference between the actual value of the property and what its value would have been if the representations had been true does not in fact represent the actual damage sustained as the natural and proximate result of the fraud, In such cases, since it is a cardinal principle of the law that the person injured is entitled to receive compensation for the injury actually inflicted, the party defrauded may prove and recover his actual damages, except, of course, such as he might have avoided by the exercise of reasonable diligence.- — 14 Am. & Eng. Ency. Law (2d Ed.) 183; 20 Cyc. 130 et seq., 136, 140, 141; 1 Smith’s Leading Cases, 248-252; Jones v. Ross, 98 Ala. 448, 13 South. 319; Hogan v. Thorington, 8 Port. 428; Kornegay v. White, 10 Ala. 255; Willis v. Dudley, 10 Ala. 933; Milton v. Rowland, 11 Ala. 732; Marshall v. Wood, 16 Ala. 806; Worthy v. Patterson, 20 Ala. 174; Rowland v. Shelton, 25 Ala. 217.
One of the bones of serious contention in the present case, which is an action for deceit in the sale of a second hand locomotive engine, is as to the proper measure of damages. The complaint, which was filed by appel-lees as plaintiffs below against appellant, who sold to appellees the said engine, alleged in substance, in the only counts that need be here noticed, that, at the time of and in the negotiations for the sale, the appellant, through its agent who conducted the sale, represented that said engine had recently been overhauled, repaired, and rebuilt by it in its shops, where the engine was at
The evidence tended to show, further, however, that the engine was not overhauled or repaired until after it had been used hy plaintiffs for about a year, and that, when it was so overhauled and repaired, the original der sign of the engine, as respects the bracing of the fire box and boiler.,' was changed so as to make it meet the requirements of the federal Boiler Inspection Act, which activas passed hy Congress, or became operative, after plaintiffs purchased the engine.
Of course, the defendant was not liable for any of the costs of the overhauling and repairing that was rendered necessary by the wear and tear resulting from the use and service to which the plaintiffs had put the engine between the time of the purchase and the time that the overhauling and repairing was done, nor for any cost of such overhauling and repairing that was done in rnaking the engine conform to the requirements of the federal act mentioned, hut was, we think, liable, as the natural and proximate result of the wrong complained of, for the reasonable cost and expense to which the
The lower court, in substance and effect, so charged the jury, and we find no error, therefore, in any portion of the oral charge as to the measure of damages that was excepted to, nor in the court’s refusal to give the written charge requested by defendant asserting that the measure of damages in the action was the difference, between the value of the engine as represented and its' actual value. The plaintiffs sought only to- recover the expenses mentioned. In this connection, it may be said that the burden of proving these damages rests upon the plaintiffs, and it was incumbent on them, and not defendant, to show, to the satisfaction of the jury, what part of the total sums shown to have been expended for repairs and overhauling and in hiring other locomotives was necessary to indemnify plaintiffs for the false representations alleged to have been made and to make good those representations.—Ritter v. Hoy, 2 Ala. App. 364, 56 South. 814. This duty cannot be met by showing the whole costs of such overhauling and repairs, when it appears,
The court erred in its oral charge to the jury as to the character of fraud sufficient to support this action, when it stated in effect that, if the representations alleged to have been made by defendant were untrue and were as to a matter of fact and operated as a material inducement to the plaintiffs in making the purchase, then it makes no difference whether they were innocently and honestly made or not. Innocent or honest misrepresentations will authorize a rescission of the contract of sale, but not an action for deceit. The statute on this subject has modified, to some extent, the case law previously existing in this state as to the character of fraud necessary to support the latter action, so that the rule now is the same as obtains by judicial decision in most of the other states. We had occasion recently to discuss fully the matter in the cases cited below, and need not now reiterate.' — Code, §§ 2469, 4298, 4299; Hockensmith v. Winton, 11 Ala. App. 670, 66 South. 955; McCoy v. Prince, 11 Ala. App. 388, 66 South. 950; 14 Am. & Eng. Ency. Law (2d Ed. 21, 22.
The court, consequently, also erred in refusing written charges 13, 14, and 15, which correctly asserted the law in conformity with the authorities above cited.
The defendant was not entitled to the affirmative charge under its plea of the statute of limitations of one year, since the law allows the suit to be brought at any
The remarks of counsel complained of are not likely to be indulged in on another trial, and need not therefore be considered. We have discussed the only errors seriously urged, and for those pointed out the judgment, is reversed.
Reversed and remanded.