Kelly v. L. & N. R. R.

ANDERSON, J. It appears that a demurrer was sustained to pleas 2 and 4, and which went to each count of the complaint. It also appears that said pleas were amended and refiled; but the amendment in no way confined the pleas to any particular counts, as they undertake, after amendment, as they did when originally filed, to answer each count of the complaint. The only amendment we find to the complaint was to add additional counts. There is nothing in the record to show that the wanton counts were ever stricken out. Pleas 2 and 4, whether sufficient as pleas of contributory negligence or not, were not answers to the wanton counts of the complaint, and the demurrers, proceeding upon this theory,, should have been sustained. Plaintiff adopted all! grounds of demurrers previously filed, and refiled with other grounds to pleas 2 and 4 as amended. The trial court erred in not sustaining the demurrers to these pleas, in so far as they attempted to answer the wanton counts. If the release as set up in the third plea came within the influence of section 1.802 of the Code of 1896, and its execution could be questioned only by a sworn replication, said section has no application to the plaintiff’s replications in the case at bar, as they did not deny the execution of the release. They simply set up the incapacity of the plaintiff at the time of the alleged execution. “Unlike general and permanent insanity and ido [578] cy, drunkenness does not create suck legal incapacity as will alone render a contract wholly void. Though it may furnish the party suffering from it ground for rescission, yet, being voidable only, the contract may be affirmed and made binding by him after he becomes sober.”— Oakley v. Shelley, 129 Ala. 470, 29 South. 385; Benj. on Sales, § 33; Carpenter v. Rodgers, 61 Mich. 384, 28 N. W. 156, 1 Am. St. Rep. 595; Van Wyck v. Brasher, 81 N. Y. 260; Wright v. Waller, 127 Ala. 557, 29 South. 57, 54 L. R. A. 440. If the party, after becoming sober and realizing the execution by him of a contract while incapacitated by drunkenness, desires to avoid the same, be must act promptly and unreservedly, and must return whatever he has received from it. “He cannot hold onto such part of the contract as may be desirable on his part, and avoid the residue, but must rescind in toto, if at all.” — Wright v. Waller, supra; Stephenson v. Allison, 123 Ala. 439, 26 South. 290. The second replication to the third plea did not deny the execution of the release or the receipt of the money alleged to have been paid for same, but merely set up that plaintiff had no knowledge of same. Not denying the receipt of the money, it was incumbent upon him to restore it, or offer to do so, upon being informed that he had received it. ■ The defendant’s third plea so informed him, and his replication should have offered to put the defendant in statu quo. The case of Western R. R. v. Arnett, 137 Ala. 426, 34 South. 997, is not an authority against this holding. There the $25 was set up in the replication as a gift by the defendant to the plaintiff. If it was a gift, and not the consideration for the •release, the plaintiff was under no legal obligation to restore same. While the second replication was bad for not showing a tender or offer to tender the sum paid under the release, and the receipt of which was not de [579] nied by the plaintiff, it was not subject to the grounds of demurrer interposed to same. The fourth ground is the only one which raises a failure on the part of the plaintiff to return the money, but challenges the second replication to the third plea for failing to aver a tender before the suit was brought. The replication averring that the plaintiff had no knowledge of the release or the payment of the money, it was not necessary for the plaintiff to aver a tender until put upon notice by defendant’s third plea. So, conceding that the plaintiff should have offered to repay the money, he did not have to do so before the suit ivas brought, if he did not know of the release until the plea was filed, and the replication was not subject to the grounds of demurrer interposed to same, and the trial court erred in sustaining the demurrer thereto. The third and fourth replications to the third plea averred a tender and refusal by the defendant at the time of filing same, which was May 10, 1907, and really three years after the third plea was filed, and which was not denied by any of the replications, and which said tender was not made until after the case was once tried ,in the lower court and was reversed by this court. The plaintiff, having been informed of the release, could not sit quietly by for years and speculate on the result, and then attempt to rescind by offering to repay the money when the case came up for trial the second time m the lower court. — Harrison v. Ala. Midland R. R., 144 Ala. 256, 40 South. 394. The trial court properly sustained the demurrers to replications 3 and 4. For the errors above designated, the judgment of the trial court is reversed, and the cause is remanded. Reversed and remanded. ■ Tyson, C. -J., and Dowdell and McClellan, JJ., concur.