Young v. Arntze & Bros.

SOMERVILLE, J. The allowance by the court of the amendment to the complaint was free from error. Upon the sustaining of the demurrer to the original complaint, based on the misjoinder of counts, all the counts except the first were stricken out, in order to conform to the ruling of the court on the demurrer. The new count, added by way of amendment, w§.s for an alleged breach of the contract sued on; and so was the first count, although its averments may have been informal and defective. These defects, if any, should have been taken advantage of by demurrer, not by motion to strike, which was properly overruled. The Circuit Court, in our judgment, erred, however, in one or more of its rulings on the evidence, the effect of which must necessarily operate to reverse the judgment. It was immaterial to any of the issues in the case, that no sidetrack had been constructed on the railroad at Flint Bridge, where the machinery in question was situated, and that the defendant Young had been informed that it would not be constructed prior to his offer, in behalf of the defendants, to [121] rescind the contract of purchase, on the ground of alleged fraudulent representations by the plaintiffs at the time of the sale. The right to rescind depended upon the facts attending the sale — the existence or non-existence of fraud —not on the mere motive of the purchasers in electing to assert such right. The court also erred in excluding the testimony of the witness Patterson, as to his negotiations with the plaintiffs for a purchase of the machinery after the alleged rescission of the sale by the defendants, and of the fact that the witness notified the defendant Young of this action on the plaintiffs’ part. The first portion of this evidence tended to show a consent on the plaintiffs’ part to the rescission, and a waiver of the defendants’ duty to return the machinery to Decatur, where the sale and delivery were made. The notice to Young was material as tending to explain his conduct in using some of the machinery after the rescission, by Patterson’s consent. If Young had reason to believe, and did believe, that Patterson had bought the machinery after he offered to return it, his continued use of it by Patterson’s consent would not operate to prejudice his rights against the original vendors, the plaintiffs. What the witness Byan told defendants, as to his opinion in reference to the alleged improper construction of the furnace, was manifestly irrelevant, and should have been excluded. It was mere hearsay within the strictest signification of the term. The following principles will probably be a sufficient guide upon another trial: If the plaintiffs, in making the sale of the machinery to defendants, misrepresented any material fact on which the ■defendants, as purchasers, had a right to rely, and did in fact rely, as an inducement to the trade, this would be a fraud in the sale. If such fraudulent misrepresentation was made, the defendants would have their election to retain the goods and abate the purchase-money by .proving the fraud in reduction of damages; or they could, within their option, rescind the sale. If they elected to rescind, they must have exercised the right within a reasonable time — i. e., with due promptitude from the time the fraud was discovered, or ought to have been discovered. If the right of rescission was exercised, the defendants [122] were required to place the plaintiffs in statu quo by returning the goods to them at the place where the trade was consummated by delivery. But this feature of the rescission could be waived by the plaintiffs giving their assent, clearly and unequivocally, either expressly or by implication, to an acceptance of the goods at any other place. Whether there was such a waiver in this case, in view of the conflicting evidence, was a question for the jury. If there was no rescission manifested for sufficient cause and with proper diligence, the action could not be defeated entirely, if the facts showed a completed sale of the machinery by the plaintiffs to defendants, and the articles purchased were of any value. If they were of any intrinsic value, whether adapted to the particular use for which they were purchased or not, the payment of the entire purchase-money could not be avoided on the ground of fraud, or breach of warranty. The other questions raised by the charges have been too often discussed by us for any further consideration. We need only to refer to some of the adjudged cases in support of the foregoing propositions: Moses v. Katzenberger, 84 Ala. 95; Brown v. Freeman, 79 Ala. 406; Eagan Co. v. Johnson, 82 Ala. 233; Jones v. Anderson, Ib. 302; Tabor v. Peters, 74 Ala. 90; Jamison v. Woodruff, 34 Ala. 143; Davis v. Betz, 66 Ala. 206; Sledge v. Scott, 56 Ala. 202; Bryant v. Isburgh, 74 Amer. Dec., Note, 657-662; Johnson v. Evans, 50 Amer. Dec., Note, pp. 674-7. Reversed and remanded.