141 So. 545 | Ala. | 1932
Lead Opinion
As we view this action, counts A and B, it is for a rescission and recovery of the sums heretofore paid upon the ground of fraud or deceit in inducing the plaintiff to enter into the contract. The counts not only set out the fraud and deceit, but expressly charge that plaintiff demanded of the defendant a return of his money and tendered to the defendant the certificates of stock, and the defendant refused to refund said money to plaintiff and to accept the surrender of said stock. These counts are different from the one dealt with in the case of Sou. Bldg. Loan Association v. Hughs,
It is a well-settled principle of law that where one is induced by fraud to enter into a contract he may rescind by restoring benefits and recover payments, or affirm, retain benefits, and sue in deceit for damages. Day v. Broyles,
It seems, however, that the rescinding party, on offering to restore what he has received under the contract, may couple his offer with a demand for the restoration to him of what was parted with. Black on Rescission, § 626, Mitchell v. Moore,
The appellant, in effect, concedes that the question of fraud and deceit was for the jury, but contends that it was due the general charge because the evidence failed to show a sufficient offer to restore or tender the stock certificate upon a discovery of the fraud. As above noted, this was a question for the jury, and the trial court did not therefore err in refusing the general charge requested by the defendant.
The trial court did not err in permitting the plaintiff to testify that he paid the money over to Williams, the agent, upon what he told him. Hockensmith v. Winton,
The judgment of the circuit court is affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
Addendum
The application is overruled.
GARDNER, BOULDIN, and FOSTER, JJ., concur. *614