Tribble v. Crestline Land Co.

52 So. 600 | Ala. | 1910

SIMPSON, J.

The suit in this case was brought by the appellee against the appellant for the recovery of $45, with interest, due by nine promissory notes for $5 each, and for $50, with interest, due by ten promissory notes for $5 each. There were two complaints, after-wards consolidated, each alleging at the end of the complaint that defendant had waived the benefit of the exemption laws, and agreed to pay a reasonable attorney’s fee. The first count alleged that $15 was a reasonable attorney’s fee, and the second that $20 was a reasonable attorney’s fee; but neither complaint claimed, any attorney’s fee. Pleas of no consideration and failure of consideration were filed; also special pleas. Plea 4 sets up the special contract, which was introduced in evidence (and will be set out by the reporter), admits the failure to pay the notes, but claims that defendant is not liable for more than the fair rental value of the property rented, which it is alleged is not more than $15, which was paid in advance. Pleas 5 and 6 set up the same defense. Pleas 7 and 8 set up the defense that the notes were obtained by fraudulent representations that a street car line was projected through or near the land leased or bought.

There was no evidence tending to sustain the plea of no consideration, nor that of failure of consideration, and the only evidence on the subject of fraud was the statement by the defendant, as a witness, that “the agent of plaintiff, from whom he rented or purchased the property, represented to him that at the time he purchased said lot there was a car line projected through said property, and showed him on the map of said property where said street car line would run, and that after purchasing said lot he learned that said car line was not projected through said property, and that said car line had not been run through said property”; the nearest line being 1, 1 y2, and 2 miles distant. There was no testimony as to just when the representations were made, though inferentially it may be said that the intent was to say that the representations were made at the time he purchased. There was no proof as to the authority of the unnamed agent to make the representations, nor that the notes were given on the faith of such representations, nor as to whether the street car line would add any value to the property, or how much. So there was no proof to sustain this, the only plea which set up any defense.

The defendant, having entered into a written agreement to pay so much for the rent of the land, of course, was bound for that much, unless the defense of fraud was sustained. These being the facts, the plaintiff was entitled to the general charge, and there was no reversible error in giving or refusing any of the charges; but, as before stated, the complaints, claimed only $90, with interest, and the verdict was excessive. The matter was brought to the attention of the court by a motion for a new trial, and the motion should have been granted.— Drake v. Johnson, 50 Ala. 1; Ritch v. Thornton, 65 Ala. 309; Gilliland v. Dunn & Co., 136 Ala. 327, 34 South. 25.

The judgment of the court is reversed, and an order will be here entered granting the motion for a new trial.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur..