Kannady v. Lambert

A. J. WALKER, C. J, The fourth plea first denies [59] ¡all tlxe allegations of tbe complaint. So far as tbis denial ifs concerned, there was no prejudice to tbe defendant from, sustaining the demurrer to tbo plea; for it presented no •defense not available under tbe general issue, which was ;also pleaded. So, also, tbe agreement to cancel and destroy tbe note, in consideration of tbe overflow of tbe land for which tbe note was given, and of tbe ¿false representation as to that matter, could have been given in evidence: under the general issue; and tbe plaintiff sustained no prejudice from the demurrer so far as that defense was concerned.. 1 Chitty on Pl. 478; Stedham v. Stedham, 32 Ala. 525 ; Fail & Miles v. McArthur, 31 Ala. 26. Besides these two-matters, however, tbe plea contains allegations to the effect, that the note was given for the purchase-money of a tract of land; that the vendor represented, at the time of the purchase, that the land was not subject to overflow that a great portion of it was subject to overflow; that the vendor knew that fact, and that ¡the defendant was thereby damaged, to an extent beyond the amount of the note. We have, in this part of th,e plea, the averment o.f a misrepresentation as to a mattes which seems ,to have been material» and of injury to the entire amount of the -note, but no* .averment that the misrepresentation misled the defendant, or that it constituted an. inducement to the defendant tmake the contract of purchase, or was-relied'upon by the defendant. On account of the failure to make such averment, the plea fails to make out a ease of fraud.—Pritchett v. Munroe, 22 Ala. 501 ; S. C., 16 Ala. 785 ; Bailey v. Jordan, 32 Ala. 50 ; Foster v. Gressett, 29 Ala. 393 ; Read v. Walker, 18 Ala. 323 ; Cozzins v. Whittaker, 3 S. & P. 322 ; 2 Chitty on Pl. 687, 688, 689. There was, therefore, no reversible error in rejecting any of the three matters of defense brought forward: in the plea. Since the adoption of the Code, the defense of- fraud is available, under the plea of set-off to a note .given for the purchase-money of the land; but a set-off is only available under a special plea. The defendant, having no special plea of set-off, .cannot have the advantage of this defense by virtue of th [60] provision of the Code alluded to. The defense against the vendor’s suit for the purchase-money, on the ground of fraud, could not, under our system, be made under the general issue; for it is no defense at law, as held in numerous cases, except by virtue of the provision of the Code which allows a set-off of any reciprocal cause of action not sounding in damages merely.—Kelly's Heirs v. Allen, 34 Ala. 663. There was no error in the exclusion from the consideration of the jury of the vendor’s misrepresentations, as there was no issue upon which they were admissible. The bill of exceptions does not show that the evidence offered by the defendant, as to the payee of the note being about to-leave the country in May, 1857, was relevant to the issues before the jury. Not being able to perceive the relevancy of the evidence, we cannot hold that the court erred ii\ excluding it. Judgment affirmed.