Patton v. Tidwell

Jan 27, 1921

2 Div. 736.

Reporters:: , ,
Before:: Anderson

ANDERSON, C. J.

[1, 2] The Court of Appeals reversed this case upon the theory that counts 1, 2, and 4 were subject to the defendant’s demurrer for failing to set out *256 the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍facts constituting the fraud relied upon by the plaintiff. In this we think that the Court of Appeals was in error. Each of said counts avers every fact necessary to the maintenance of the action with sufficient certainty. Henry v. Allen, 93 Ala. 197, 9 South. 579, and cases there cited. The plea criticized as being faulty as to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍averment of facts as to fraud in the case of Stouffer v. Smith-Davis Co., 154 Ala. 301, 45 South. 621, 129 Am. St. Rep. 59, is quite different from the counts of this complaint, as can readily be observed from a comparison of same. The Court of Appeals also condemns count 4 because of the insufficient or improper alternative averment that defendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍agreed to deliver one boll weevil machine made to conform to said letters patent to one government agricultural agent in each county in Alabama for samples during the early part of the spring of the year 1918. The Court of Appeals treats this as an alternative averment, when it is in the conjunctive. The gravamen of the complaint ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the fraud complained of was not that the defendants merely undertook to do certain things in the future, but had already made and completed arrangements for the delivery of the machine the early part of the spring of 1918 for the market and to the said demonstration agents.

The writ of certiorari is hereby awarded. The judgment of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the Court of Appeals is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.

Writ awarded.

All Justices concur, except MILLER, J., not sitting.