Lowery v. Mutual Loan Soc., Inc.

SOMERVILLE, J. [1, 2] It is elementary law that one who has been induced to enter into a contract by the material misrepresentations of the other party may, if he acts with reasonable promptness npon the discovery of the fraud, rescind the contract in toto; and, if he has parted with any consideration, he may recover it by suit, or he may stand upon the contract, and recover for damages resulting from the fraud. [3-5] Or, if sued for the consideration promised, he may defeat a recovery by pleading and showing an effective rescission; or, without rescinding, he may defeat or mitigate the recovery, by pleading and showing the fraud and the damage resulting. 9 Cyc. 432, b. But, in any case, the contract is valid and operative, unless and until it.is duly rescinded. 9 Cyc. 431, 3. None of the several pleas interposed by defendant suggests a rescission by him of his contract of subscription to plaintiff’s capital stock. They must, therefore, be treated as pleas of recoupment only; Although the minute entry recites that demurrers were interposed to all of the special pleas, the only demurrers shown by the record are to pleas 3, 4, and 6, and demurrer was sustained only to plea 3. [6, 7] Plea 3 was clearly bad, in not showing that defendant suffered damage by reason of the fraud alleged; and, although plea 6 declares that defendant was induced by the alleged fraud to sign the note, “to his injury and damage,” this was not sufficient to show that defendant had sustained any substantial loss by reason of tbe misrepresentation complained of. Moore v. Westinghouse E. & M. Co., 112 Ala. 452, 20 South. 487. The demurrer should have been sustained to pleas 4 and 6 also. However, issue was joined on pleas 4 to 8, inclusive, and the record limits us to a consideration of the rulings of the trial court in excluding certain evidence offered by defendant in support of these pleas. [8, 9] We think the printed subscription blank used by plaintiff company, and the stock certificate issued to a third person about the time of defendant’s subscription, were relevant and competent to show, prima facie, that the par value of plaintiff’s stock issue was and is $10; and plaintiff’s stock book, if it had been made to appear that it would have so shown, was admissible for the same purpose. [10] However, when fraud is relied upon, whether as the basis for an action in deceit, or asi a defense to recoup damages, or to avoid the contract entirely, it is without legal effect, in the absence of proof that the fraud relied upon resulted in some Injury. Bomar v. Rosser, 131 Ala. 215, 31 South. 430. The hill of exceptions does not show that any evidence of such resulting damage was offered by defendant, and' the trial judge might well have given for plaintiff the general affirmative charge as to pleas 4, 5, and 6. Hence, if. there was error in excluding the stock certificate of Swann, it was error without injury. [11]. For the same reason, there could have been no prejudicial error in excluding plaintiff’s stock book,. even if its relevancy had been shown by a statement of its contents, which not being done, its exclusion was proper. [12] It was a matter witbin tbe discretion of the trial judge whether ¡he should “further read” to the jury at their request th'e law of the ease which he had already, read to them. For his refusal to respond to so general a request, prejudicial error certainly cannot be declared. The record does not show that the oral charge was not taken down, and reduced to Writing by the court reporter, and no question is presented thereon. Finding no error in the record, the judgment will be affirmed. . Affirmed. ANDERSON, O. J., and MAYFIELD and THOMAB, JJ., concur.