137 Ala. 267 | Ala. | 1902
Tlie grounds of demurrer taken to the bill, insisted upon in argument, may be stated to be these: 1st, the averments as to undue influence are not sufficiently specific and definite; and 2d, it contains no allegation that complainant ever offered to rescind the contract before the filing of the bill. To see that the first insistence cannot be sustained, we have only to apply what was said in Letohatchie Baptist Church v. Bullock, 133 Ala. 552: “We have never understood it to be necessary to allege with particularity the quo modo the result complained of was accomplished, but only that it was accomplished by undue influence! exerted by. named persons. The inquiry is not whether the improper influence was sufficient to have coerced the will of a man of ordinary capacity and.force of character, but only whether the influence whatever it maj^ have been did in point of fact control the act in question — not whether it should have had the effect charged, but whether it did have that effect; and any influence which coerces an act in which the judgment and will of the actor do not occur, is undue influence. Hence it is that the averment should be rather of the result than of the .particular and special acts and modes of causation.”
It is undoubtedy true that the party defrauded must disaffirm the transaction at the earliest practical moment after a discovery of the fraud and that he must return or offer to return AAdiatever he has received from the other party. But we do not understand that he may malee the offer to return in his bill, as is done here. His failure to do so prior to its filing cannot effect its equity, and is only material as affecting the question of costs. — Thomas v. Jones, 84 Ala. 302.
The decree overruling the demurrer must be affirmed.
