Pritchett v. Fife

WALKER, P. J. — This was a statutory action of detinue for the recovery of two mules and a set of harness. The demurrers to pleas 1, 2, and O were properly sustained. Pleas 1 and C set up the fact of the defendant’s minority as a defense to the suit. The action of detinue, being for the recovery of personal property wrongfully detained, is in tort, and may be maintained against a minor. — Oliver v. McClellan, 21 Ala. 675; 22 Cyc. 621. Plea 2 avers that the property sued for was obtained by the defendant from the plaintiff in a horse swap, in which the defendant guaranteed and warranted that the property which he let the plaintiff have in the trade was all right and sound, and sets up the incapacity of the defendant, because of his minority, to bind himself by such stipulations. A plea, setting up the invalidity [467] as against the defendant of a contract which is not sued on, does not show that the contract was not also- voidable so far as the plaintiff was concerned, as it would he if his property, which was the subject of it and for the recovery of which he is suing', was obtained from him by a false representation of a material fact upon which he relied. — Davis, Moody & Co. v. Bets, 66 Ala. 206; Rutter & Hendrix v. Hanover Fire Ins. Co., 138 Ala. 202, 35 South. 33; Fuller v. Chenault, 157 Ala. 46, 47 South. 197; Walker v. Davis, 1 Gray (Mass.) 506. There was evidence tending to prove that the defendant obtained from the plaintiff the personal property sued for in exchange for other personal property; that in the trade resulting in such exchange the defendant stated and represented to the plaintiff that the mules given by him in the exchange were sound and all right; that the plaintiff entered into the transaction in reliance on the truth of this statement or representation; that shortly after the trade was made the plaintiff discovered that one of the mules obtained by him from the defendant was what was called a “choker,” being afflicted with a physical defect which materially disabled it for work; that promptly after the discovery of this defect the plaintiff offered to redeliver to the defendant the property received from him, tendered the same to him, and demanded of him the property which he had obtained from the plaintiff in the trade, and that, upon the-defendant’s refusal or failure to comply with this demand, this suit was brought. In the course of the trial a number of exceptions were reserved to rulings of the court on objections to the admission of testimony. We find no prejudicial error in any of these rulings. None of the questions raised by them are novel or difficult, and a discussion of them is not deemed necessary. [468] Tbe exceptions which, were reserved to the court’s oral charge cannot be sustained, as neither of the propositions which were stated in those exceptions was asserted by the court in its charge. By those exceptions the defendant complained of rulings which the court did not make. A misrepresentation of a material fact by a vendor, whether made with a knowledge of its falsity or with intent to deceive or not, is a ground for a rescission at the instance of the vendee, if it formed an inducement to his purchase and was reasonably relied upon by him as true. — Brewer v. Arantz, 124 Ala. 127, 26 South. 922; Brenard Mfg. Co. v. Citronelle Mercantile Co., 140 Ala. 602, 37 South. 509; Rutter & Hendrix v. Hanover Fire Ins. Co., 138 Ala. 202, 35 South. 33. Written charges 5, 6, 7, 8, 9, 11, 14, 15, and 19, each involved an assumption inconsistent with the proposition just stated, and they were properly refused. Written charge 2 requested by the defendant was properly refused, as it in effect asserted the untenable proposition that, if the defendant, because of his minority, did not incur a binding- contract obligation by the transaction as the result of which he obtained the plaintiff’s property which is sued for, the latter could not rescind that transaction and recover his property, though it was obtained from him by a false representation of a material fact upon Avhich he relied. Charge 4 requested by the defendant, as it is set out in the record, asserts in effect that though the plaintiff, because of a fraud practiced upon him by the defendant, was entitled to rescind the trade and to- recover his property, yet the verdict should be for the defendant. It is plain that the defendant was not entitled to require the court to give such a proposition in charge to the jury. Refused charge 12 also improperly assumed that [469] the fact of the defendant’s minority was entitled to be given the effect of depriving the plaintiff of the right to. rescind the trade because of a misrepresentation of a material fact, and it was properly refused. Written charge 16 requested by the defendant, as it is set out in the bill of exceptions, probably does not state the proposition intended to be asserted, but plainly it does not state a proper predicate for a verdict in his favor. It was properly refused. No reversible error is found in the record. Affirmed.