186 So. 156 | Ala. | 1939
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *228 The submission was on motion to strike bill of exceptions and on merits.
The matter presented by way of motion to strike the bill of exceptions is not efficacious for such purpose. The judge of the circuit court signed the same within the requirements of the statute. The rule of the Jefferson County Circuit Court, in question, may not change or vary the terms of the general statutes as to bills of exceptions. The motion is overruled.
The attention of this Court was directed, on oral argument, to the action of the trial court in overruling plaintiff's demurrers to defendant's plea number seven. This was presented by grounds of demurrer numbered 3, 12, and 13.
It has long been the rule of this jurisdiction that allegations of fraud in a pleading must set forth the facts constituting the fraud and to be sufficient must do this with reasonable certainty. Zuckerman v. Cochran,
It may be observed that the recent decisions are to the effect that: "While a failure to fulfill a mere promise or undertaking — something to be done in the future — alone will not constitute actionable fraud, yet if with intent to deceive a promise is made with no intention of fulfillment at the time, and injury to the defrauded party results therefrom, fraud may be predicated thereon, notwithstanding the future nature of the representations. This is the settled rule in this state (Snell National Bank v. Janney,
See, also, Snell National Bank v. Janney,
The special plea set up a collateral agreement inconsistent with the terms of the written instrument in question. Evidence that tended to contradict or vary the writing or defeat its operation is inadmissible in pleading and evidence. Perkins Oil Co. of Delaware v. Davis,
The action of the trial court in overruling plaintiff's demurrer to defendant's plea seven is duly assigned as error and presented by argument. The suit being brought upon an unconditional promise to pay, and there being no allegation of any facts showing fraud in procuring the signature by misrepresenting or concealing the contents of the instrument in question, there can be no alteration or contradiction of that instrument by parol agreement which was alleged to have been made at the time of execution of the written agreement. Holczstein et al. v. Bessemer Trust Savings Bank,
The foregoing is sufficient to indicate the error of the trial court in overruling demurrer to plea seven.
It is unnecessary to discuss other questions, as the case should be tried on proper issues.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *230
