McGar v. Williams
26 Ala. 469
Ala.
1855
Check Treatment
CHILTON, C. J.

—In Oldham v. Bentley, 6 B. Mon. 428-31, thе rule of law is stated, with much accuracy, to be, that a false and fraudulent representation, made by one party to a contract, whereby he makes gain to himself and occasions loss to the other party, gives to the defrauded party a cause of action for the cleceit; provided, thе representation relate to a matter deemed material, and as to which the deceived party has ‍‌​‌​‌​​​​‌‌​​‌​‌​‌‌​​​‌‌​‌‌‌‌‌​​​‌‌​‌​‌​‌​‌​​​​​‍a right to require a promise from the other, or to look to him for a true representation.

Let us apply this rule to the case before us. The defendants followed the business of putting оn tin roofs, and it was material, as furnishing a strong inducement for the plaintiff to employ them, to be informed as to the extent of their skill, and the length of time which a roof put on by them would last without leaking. The plaintiff had a right to rely upon their representations as to these matters, for they are supposed to be peculiarly within their knowledge, pertaining to their art or calling ; and if they made false representations, whereby the plaintiff was induced to employ them, and have thus knowingly deceived and defrauded the plaintiff by causing him to believe that they could put on a tin roof which would last twenty years without leaking, we know of no principle of law which would allow them to hold on to the gains from such a transaction, and avoid all liability, upon the ground that the reprеsentation which constituted the inducement for the plaintiff to part with his money was .not only false, but incapable of being made good. If the plaintiff was *485dеceived by the false and fraudulent representations made by the defendants, to his injury and their gain, it would be to allow them to take advantage of their own wrong, to permit them to set up the impracticability of making good their representation ‍‌​‌​‌​​​​‌‌​​‌​‌​‌‌​​​‌‌​‌‌‌‌‌​​​‌‌​‌​‌​‌​‌​​​​​‍as a reason for retaining such gain. “ The law”, it is said, “ will not sanction dishonest views and practices, by enabling an individual to acquire through the medium of his deception any right or interest.” — Broom’s Maxims 320.

While it is certainly true, that thе law will not seek to compel a man to perform that which is either vain or fruitless, or which he cannot possibly perform, at the same time it will not permit him, by false and fraudulent practices or assertions, to obtain money as the price of a proffered good which he cannot confer. Thе fraud and consequent injury constitute the wrong for which the law gives the remedy ; and in this form of action, regard can be had to the nature of the representation, or thing promised to be done, only so far as is necessary to determine whether these essential requisites exist, and the quantum of the damages sustained.

If a man contract with аnother that he will build a tower which shall reach to the moon, this would be ‍‌​‌​‌​​​​‌‌​​‌​‌​‌‌​​​‌‌​‌‌‌‌‌​​​‌‌​‌​‌​‌​‌​​​​​‍vain, foolish, and impossible in the nature of things.' It would create no obligation, for the mаxim, “Lex non cogit impossibilia”, would apply. No one, having sufficient capacity to contract at all, could be deceived in a matter so obviously ridiculous and impracticable ; and consequently, no action of deceit would lie for any such false assurance or representation. But it is very different in a case like the one before us, where persons holding themselves out to the world as skilled in a particular branch of mechanics induce others to incur expense and part with their money, upon false and fraudulent assurances that their skill will enable them to accomplish results which, al-tli ough hitherto deemеd unattainable, are not manifestly absurd and essentially impracticable in the nature of things. Concede that workmen are generally agreed that а tin roof cannot be made which will last twenty years without leaking, still it is not palpably impossible, if it be so at all. There is nothing-in the nature of things, which renders it absurd or ridiculous to believe that human skill and ingenuity has attained, or may attain, to such a result; hence there is no reason why the *486defendants could not have cоmmitted a fraud, or made a false warranty, respecting it. They are, as we have said, workmen, supposed to be skilled in this branch of business ; and however imрrobable the result which they proposed to attain, the plaintiff might well have reposed upon the presumption that they knew the completiоn of the duty they had undertaken was within the compass of their power. — Broom’s Legal Maxims, p. 121, and notes. We come, therefore, to the conclusiоn, that the court erred ‍‌​‌​‌​​​​‌‌​​‌​‌​‌‌​​​‌‌​‌‌‌‌‌​​​‌‌​‌​‌​‌​‌​​​​​‍in submitting to the jury, as a turning point in the cause, the question as to the practicability of making good their assurance, or represеntation, on the part of defendants, that the roof should last twenty years without leaking. The true question was, whether the representation, if made, was false, and whether the plaintiff was deceived thereby to his injury. That they promised more than their skill would enable them to perform, neither lessens the fraud nor in any way mitigates the injury.

We think the court very correctly laid down the law in the fifth charge. If the defendants’ representations, or warranty, related to putting a roof upon the building to be erected after a given plan, and the plaintiff caused a material change to be made in the building without the consent of thе defendants, thereby rendering it necessary to make a material change in the form of the roof, the plaintiff must be considered as having abandonеd the original contract, and could not be allowed to hold the defendants bound by any agreement or representations made with respect to the original plan. If, on the other hand, the agreement and representation as to the character of the roof had no referencе to any particular plan or form of the roof, and the defendants proceeded, under their contract, without any objection to the alteration of the plan, to put the roof on the building, then the change, although it might have rendered it more difficult to cover securely, would not affect thе defendants’ liability.

The court below, we are of opinion, committed an error in giving the sixth charge, as to the effect of the payment. It was not an absolute bar to a recovery, on either count, but was ‍‌​‌​‌​​​​‌‌​​‌​‌​‌‌​​​‌‌​‌‌‌‌‌​​​‌‌​‌​‌​‌​‌​​​​​‍a circumstance to be weighed by the jury, as tending to show that no fraud was committed. It was for them tо decide, whether the plaintiff, or his authorized agent, with a full *487knowledge of the defects, would have completed the payment without objecting to the work, if the defendants had falsely and fraudulently promised, or represented, that the roof which they would put on would last twenty years without leaking any.

This case is distinguishable from Gilmer v. Ware, 19 Ala. 252, cited by dеfendants’ counsel. Here, the fraud (if any) and injury were consummated before the payment; and to hold the payment to be a bar, would give it the effect of releasing á right of action which had already accrued. In that case, however, the contract, so far as the purchaser was concerned, was inchoate ; and being fully advised of the fraudulent circumstances, before he completed the contract by complying with his bid, the purchaser could not have béen deceived, but elected to take the property as it was by paying for it; thus, as it were, incorporating the alleged fraudulent circumstances into the contract. The payment in this case, if made with a full knowledge of the defects or leaks in the roof, is, at most, but evidence to be weighed by the jury, tending to show that no false or fraudulent representation was made to the plaintiff’s injury. It cannot operate as an estoppel in pais, nor as a release or waiver of an existing cause of action.—Huckabee v. Albritton, 10 Ala. 657.

Let the judgment be reversed, and the cause remanded.

Rice, J., having been of counsel, did not sit in this case.