Letson v. Mutual Loan Soc.

THOMAS, J.- The case has been before this -court, and is reported in 200 Ala. 257, 76 South. 17; 202 Ala. 683, 81 South. 659. On the last trial, in addition to the common counts, the complaint was amended by adding counts 8 to 11, inclusive. On motion -count 10 was stricken (Liverpool & London & G. Ins. Co. v. Lowe (Ala. Sup.) 93 South. 765; 1 L. & N. v. Echols, 203 Ala. 627, 84 South. 827); and counts 6, 7, and 8 were eliminated by demurrer. The trial was had on common counts and special counts 9 and 11. An amendment to the complaint that is not a departure relates to the filing of the original complaint. Barnett v. Dowdy, 207 Ala. 641, 93 South. 638 ; Lisenby v. Gapps, 200 Ala. 20, 75 South. 332. To the complaint defendant replied the several statutes of limitation and laches in the exercise of the right of rescission, because of tlie alleged fraudulent representations, after discovery or after the same “ought to have been discovered by the exercise of reasonable diligence.” Representations by agents selling stock in corporations and frauds inducing the same have been frequently discussed in this jurisdiction. Capital Securities Co. v. Gilmer, 190 Ala. 340, 67 South. 258, Ann. Cas. 1917A, 888; Capital Security Co. v. Owen, 196 Ala. 385, 72 South. 8; Mutual Loan Soc. v. Letson, 200 Ala. 251, 76 South. 17; King v. Livingston Mfg. Co., 192 Ala. 209, 68 South. 897; Ala. F. & M. Works v. Dallas, 127 Ala. 513, 29 South. 459; Stone v. Walker, 201 Ala. 130, 77 South. 554, L. R. A. 1918C, 839. The issues presented by the pleadings made competent evidence tending to show the fraud averred to have been perpetrated on plaintiff as to misrepresentation of the situs of incorporation, who its executive officers were, its stockholders, dividends that had been declared, and properties owned by the corporation. Ala. F. & M. Co. v. Dallas, supra; Southern States F. & C. I. Co. v. Tanner, 189 Ala. 30, 31, 32, 60 South. 81. The general affirmative charge was given for defendant. If there was evidence reasonably affording an inference adverse to the right of defendant, a j.ury question was .presented. McMillan v. Aiken, 205 Ala. 35, 40, 88 South. 135; N. C. & St. L. v. Crosby, 194 Ala. 338, 70 South. 7; B. R. L. & P. Co. v. Enslen, 144 Ala. 343, 39 South. 74. A careful consideration of the evidence convinces us that the case should have been submitted to the jury on the facts as to whether or not plaintiff was defrauded, and, if so, when he discovered that fraud. Code, § 4852: Veitch v. Woodward Iron Co., 200 Ala. 358, 76 South. 124; Sims v. Riggins, 201 Ala. 99, 77 South. 393. So, also, should the court have permitted the cross-examination of defendant’s witness as to the classes or kinds of stock which he represented as the selling agent to the plaintiff as being that to be sold and delivered to Mm on consummation of sale. *287 It is unnecessary to discuss the other questions presented. ' For the giving of the general affirmative charge at defendant’s request, the judgment is reversed and the cause is remanded. Reversed and remanded ANDERSON, O. J., and McCLELLAN and SOMERVILLE, JJ., concur. Footnotes [1] Ante, p. 12.