Opinion
6 Div. 496.
October 27, 1921.
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
D.C. Burkhart, of Birmingham, for appellant.
There is no allegation of fraud in the complaint, and hence no evidence of fraud was admissible. 58 Ala. 627; 103 Ala. 215, 13 So. 771; (Tenn.Ch.) 51 S.W. 492; 20 Cyc. 104. By treating the property as his own after discovery of the fraud, he cannot rescind, and the only remedy is on an implied warranty. 169 Ala. 50, 53 So. 796; 150 Ala. 227, 43 So. 568; 123 Ala. 439, 26 So. 290; 115 Ala. 366, 22 So. 422; 90 Ala. 150, 7 So. 467; 6 R. C. L. 316. A court cannot rescind a contract on mere preponderance of evidence. 52 Ala. 282; 95 Ala. 389, 11 So. 15.
Black Harris, of Birmingham, for appellee.
There was no necessity for any allegation for fraud. 65 Ala. 538; 76 Ala. 428; 82 Ala. 302, 2 So. 911. The facts present a case for a rescission in toto. 202 Ala. 51, 79 So. 389; 11 Ala. App. 670, 66 So. 954; 93 Ala. 197, 9 So. 579. There was no error in the refused charges. 186 Ala. 282, 65 So. 329; 131 Ala. 658, 31 So. 558, 57 L.R.A. 212; 126 Ala. 244, 28 So. 422; 64 Ala. 535; 118 Ala. 330, 24 So. 852. Casual remarks by court to counsel, not addressed to the jury, are not subject to review. 5 Ala. App. 255, 59 So. 751; 135 Ala. 433, 33 So. 276; 127 Ala. 33, 28 So. 687; 55 Ala. 47; 78 Ala. 5.
Statutory detinue for one Ford auto car. Judgment for the plaintiff; damages for detention assessed at one cent.
The parties had exchanged automobiles — at least there had been negotiation looking to an exchange, and defendant had taken possession of the machine plaintiff sought to recover. Plaintiff's contention, as shown by the evidence adduced, took on two aspects: (1) That the negotiation had not resulted in an agreement of exchange; and (2) that defendant had fraudulently misrepresented the mechanical condition and worth of his car, which came into plaintiff's possession, and on that ground plaintiff sought to establish a rescission.
Defendant's (appellant's) first insistence on appeal is that plaintiff should not have been permitted to introduce evidence of fraud, in the absence of an allegation to that effect in the complaint. The complaint is in Code form substantially. There are no precedents for defendant's contention, nor is it desirable that there should be. It has never been questioned that in an action for the recovery of specific chattels, brought in this form, plaintiff, who has by fraud been induced to part with his property, may, if he acts with reasonable promptness after discovering the fraud, rescind the contract in toto, and recover his property. In such case no allegation of fraud is necessary.
Charge 2, given at the request of plaintiff, contributed little to the jury's understanding of the issues involved, for the reason that it contained no explanation of "sufficient reason"; but it contained no erroneous statement of law (Comer v. Franklin, 169 Ala. 573, 53 So. 797), and reversible error cannot be affirmed of the court's action in giving it.
Charge 2, requested by defendant, was refused without error. It exacted too high a degree of proof. It was only required of plaintiff that he prove his title to the reasonable satisfaction of the jury. Morrow v. Campbell, 118 Ala. 330, 24 So. 852; Wilcox v. Henderson, 64 Ala. 535. The rule of Bailey v. Litten, 52 Ala. 282 (affirmed in later cases — Johnson v. Rogers, 112 Ala. 576, 20 So. 929), applies where the jurisdiction of the court of equity is invoked for the rescission or cancellation of contracts which have been reduced to writing.
Charge 4, refused to defendant, was amply covered by charge 3 given for defendant, and in better form, for, according to plaintiff's testimony, it was his right — perhaps his duty — under the contract, to have the new fly wheel adjusted. Moreover, the charge ignored plaintiff's alternative contention that there had been no consummated contract of exchange.
We find no merit in appellant's criticism of that part of the court's oral charge shown by assignment of error numbered 18. By charging the jury that they were to determine "to whom the property belonged," considered in connection with the evidence submitted to them and other parts of the court's oral charge, we do not think it was to be reasonably apprehended that the court was speaking of the right of property as it was prior to the transaction in question, and further, even though such apprehension might have been entertained, the exception went to other parts of the charge also, and failed to point out with proper definition that part of the charge now under criticism.
Assignment of error 17 is based upon a statement made by the trial court to the lawyers in the case, but not to the jury, as the bill of exceptions clearly shows, though "in their presence." The statement in question was not an instruction to the jury — the trial judge was careful to exclude that conclusion — and cannot avail to reverse. Schieffelin v. Schieffelin, 127 Ala. 14, 33, 28 So. 687, and cases there cited.
The rulings on evidence disclose no reversible error. The declarations elicited by plaintiff from defendant's witness Harmon on cross-examination — declarations made by plaintiff in a conversation with the witness — were self-serving, it is true; but defendant had drawn out so much of the conversation as tended to promote his contentions, and plaintiff was entitled to the rest in order that the jury might know the true meaning and import of the whole. Noel v. State, 161 Ala. 25, 49 So. 824.
The objection to the question allowed to the witness Smith was altogether general. The witness was a mechanic, and had worked upon the car that plaintiff got in exchange from defendant. The evidence objected to tended to show that he had not worked upon the motor, for the reason that he had been directed to work upon the rear end of the car. The question did characterize the car as a "piece of junk," and that part of it would have been better eliminated, though evidence already before the jury tended to warrant the language. However, defendant failed to point out this objection to the question, and for this reason, if none other, the trial court will not be put in error.
We find no reversible error.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.