87 So. 624 | Ala. Ct. App. | 1920
Lead Opinion
Zada Tidwell brought this suit in the circuit court of Bibb county against Luther Patton. Since the trial in the circuit court Zada Tidwell had died, and her death being suggested, the suit has been revived in the name of Phelan Tidwell, administrator, etc. The original complaint contained nine counts, the general affirmative charge being given for the defendant as to counts 5, 6, 7, 8, and 9. The trial court granted the defendant's motion to strike out certain portions of counts, 1, 2, and 4, after which the defendant interposed demurrers to all of said counts viz., 1, 2, 3, and 4, which demurrers were overruled. The reporter will set out counts 1, 2, and 4, as they appear after the motion to strike prevailed.
There can be no doubt but that count 3 is for breach of contract, while counts 1, 2, and 4, were intended for deceit or misrepresentation. The misrepresentation or deceit alleged in counts 1 and 2 is that at the time of the sale by defendant to plaintiff of a certain interest in a weevil machine patent the defendant represented that "he had completed arrangements to place such machines on the general market for sale the early spring of 1918."
In addition to this averment of misrepresentation in count 4 was the averment that defendant stated:
"That he had completed arrangements for the delivery of and would deliver one boll weevil machine made to conform to said letters patent to one government agricultural demonstration agent in each county in Alabama for samples during the early part of the spring of the year 1918."
Aside from the grounds of demurrer questioning these counts in many other respects, we think there can be no doubt that in respect to the above averments they should have been sustained. That arrangements had been completed to place such machines on the general market for sale was a mere conclusion of the pleader, and in no way averred as to whether the arrangements completed were as to finances, manufacture, or in what particular respect arrangements had been completed.
To constitute a good complaint as to fraud or deceit the facts showing the fraud or deceit should be set out. Stouffer v. Smith-Davis Hardware Co.,
Each averment of a complaint must be good, and the representation alleged in count 4, that the defendant, "would 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 *665
spring of the year 1918," related not to a past or existing fact, but to matters in future, and was subject to demurrer. 20 Cyc. 98; Meier v. Jackson,
The demurrers were properly overruled to count 3, and if the jury had predicated its verdict on this count, the erroneous overruling of the demurrers to the bad counts would have been without injury, but the verdict of the jury was that "we find for the plaintiff on counts 1, 2, 3, and 4," which, of course, precludes an application to any particular one of said counts.
Such wide latitude being permissible in the introduction of evidence in cases of this character, we would hardly feel warranted in reversing the case for what appears to be error in permitting the plaintiff to show, over the defendant's objection, that the patent adventure had not brought in any dividend, but, inasmuch as the case must go back for another trial, we feel that this testimony was improper, and may have prejudiced the defendant's case. The allegation had been stricken that the defendant guaranteed a big dividend would be paid to plaintiff on her interest in the patent, and no phase of the case, as presented to us, would appear to make this competent.
For the errors pointed out the cause must be reversed.
Reversed and remanded.
Addendum
Under the decision of the Supreme Court in Ex parte Phelan Tidwell, Administrator, etc.,
Affirmed.