McCoy v. Prince

ANDERSON, C. J. This case was decided, upon a former appeal, and is reported in 11 Ala. App. 388, 66 South. 950. We think that the legal questions involved were correctly set forth in the opinion of said court, and need add nothing to what was there said in order to dispose of the present appeal. (1) It is true that the opinion conflicts in one particular with an expression in the opinion in the case of Hafer v. Cole, 176 Ala. [667] at the top of page 247, 57 South. 757, but we think that the Court of Appeals properly treated the expression as dicta. It did not relate directly to the point involved, was arguendo, and merely stated the weight of authority, but failed to note the fact that such was not the rule as laid down by our own cases. (2) The ruling of the trial court in refusing the defendant’s requested charges 6, 7, 9, 11, and 12 was not in accord with the opinion upon the former appeal, and the judgment must be reversed. See opinion upon former appeal. Section 4298 of the Code of 1907, also the case of Hockensmith v. Winton, 11 Ala. App. 670, 66 South. 954, wherein a distinction is drawn between an action for deceit and the right to rescind a sale for false statements, and in which sections 4298, 4299, and 2469 of the Code were considered and discussed. The trial court committed no reversible error in refusing the defendant’s other requested charges, or in giving the plaintiff’s requested charges. Reversed and remanded. Mayfield, Somerville, and Thomas, JJ., concur.