Adams Hardware Co. v. Wimbish

ANDERSON, C. J. [1] While it is elementary law that parol evidence is not admissible to alter, change, or enlarge a written contract, and that previous agreements relating to the contract', when reduced to writing, become merged into the writing, it is also a well-established legal principle that, *549 when a contract is executed by one in reliance upon false representation as to its contents, it is not binding upon the party deceived, if he elects to avoid it, and it matters not that he could read, and had an opportunity to read the contract before signing same, if he did not read it, and acted upon the representations of the other. Commercial Co. v. Cooper Bros., 196 Ala. 285, 71 South. 684. “A party asserting facts cannot complain that the other took him at his word.” Shahan v. Brown, 167 Ala. 534, 52 South. 737; Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 South. 144; Folmar v. Siler, 132 Ala. 299, 31 South. 719. [2] It is also settled that, when the execution of the contract is procured by fraud or misrepresentation, it is competent to show the true contract. Cooper Bros. Case, supra; Tillis v. Austin, 117 Ala. 262, 22 South. 975; Dunham Lumber Co. v. Holt, 123 Ala. 336, 26 South. 663. There was proof from which the jury could infer that the contract signed by the defendant was represented to him by the vendor’s agent as containing certain warranties that were really not embraced in same; and, if this was true, the defendant had the right to show what they were, and what was the real contract, and in doing this could show the negotiations between the parties and the agreement reached, and the rulings of the trial court upon the evidence in this respect were free from reversible error. [3] The defendant had the right to show the difference in the value of the articles he contracted to buy and the ones he actually received, and it was competent to show the condition and value of the mill he received, and its grinding capacity, and whether or not certain defects affected its usefulness and grinding capacity, and the extent to which it bore upon its value, as compared with such a one as the defendant contracted to buy. [4-6] The defendant’s evidence fully justified the verdict of the jury, and, while the plaintiff offered evidence to overcome same, the weight and sufficiency of all the evidence was for the jury, and, as the jury and trial court saw the witnesses and heard the evidence, they had the advantage of this court in weighing and considering same, and under the well-recognized rule laid down in the case of Cobb v. Malone, 92 Ala. 639, 9 South. 738, and repeatedly adhered to by this court, we are not satisfied, after allowing all reasonable presumptions in favor of the correctness of the verdict, that the preponderance of the evidence against the same is so decided as to clearly convince us that it was wrong and unjust. The act of 1915 (page 722), providing that no presumption in favor of the judgment of the trial court in granting or refusing a new trial shall be indulged by this court upon appeal, has no application to cases where the trial was had upon evidence ore tenus, or partly so, and the rule of Cobb v. Malone still prevails, except where the evidence is all written or documentary, and the advantages of this court for weighing and. considering the evidence is equal to that of the trial court. Hatfield v. Riley, 199 Ala. 388, 74 South. 389; Caravella Shoe Co. v. Hubbard, ante, p. 545, 78 South. 899. The judgment of the circuit court is affirmed. Affirmed. McClellan, sayre, and Gardner, JJ., concur.