Opinion
6 Div. 894.
March 31, 1932. Rehearing Denied May 19, 1932.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
J. K. Brockman and Richard H. Fries, both of Birmingham, for appellant.
An action founded on section 8049 of the Code must specifically aver facts to bring the action within the provisions of said section. 49 C. J. 151; Jefferson County v. Gulf Ref. Co., 202 Ala. 510, 80 So. 798; Ala. G. S. R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185; So. Ind. Co. v. Hoffman, 16 Ala. App. 274, 77 So. 424. A plea in short by consent embraces the statute of limitations. Harrison v. Harrison, 39 Ala. 491; Berry v. Wooddy, 16 Ala. App. 348, 77 So. 942; Id., 201 Ala. 698, 78 So. 988. A complaint averring an undisclosed intention not embraced in the contract cannot affect the rights and obligations of the parties thereto. 13 C. J. 265; Milligan v. Keyser, 52 Fla. 331, 42 So. 367. A plea of the statute of limitations requires plaintiff to prove not only his cause of action, but also that his cause of action was begun within the period of the statute, or within the statutory exception. Condon v. Enger, 113 Ala. 233, 21 So. 227; Sullivan v. N. Pratt Coal Co., 205 Ala. 56, 87 So. 804; Maxwell v. Lauderdale, 200 Ala. 648, 77 So. 22; Forbes v. Plummer, 198 Ala. 162, 73 So. 451. A complaint averring misrepresentations must specifically aver the facts constituting the misrepresentation, that plaintiff relied, or had the right to rely, upon such misrepresentation, and that he thereby suffered injury. 26 C. J. 1137; 27 C. J. 36; Wall v. Graham, 192 Ala. 396, 68 So. 298. A fraud is discovered within contemplation of law when it is readily discoverable by the exercise of reasonable diligence. Peters M. L. Co. v. Hooper, 208 Ala. 324, 94 So. 606; Capital Sec. Co. v. Holland, 6 Ala. App. 197, 60 So. 495; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; So. B. L. Ass'n v. Waldrop (Ala.App.) 135 So. 418; Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507, 132 Am. St. Rep. 29; Williams v. Bedenbaugh, 215 Ala. 200, 110, So. 286. The definite adoption of one of two or more inconsistent remedies by a party cognizant of the material facts is a conclusive and irrevocable bar to his resort to the alternative remedy. Fid. Dep. Co. v. Art Metal Con. Co., 162 Ala. 323, 50 So. 186; Bains v. Price, 207 Ala. 337, 92 So. 447; 20 C. J. 6, 21; 13 C. J. 624; 16 Cyc. 259; 1 C. J. 114, 1033, 1039. When a cause of action set forth in an additional pleading is new, different, and distinct from that originally set up, there is no relation back, but such new pleading is the equivalent of bringing a new suit, and the statute of limitations runs against the new cause of action to the time it was introduced into the pleading. Haynes v. Phillips, 211 Ala. 37, 99 So. 356. Where land is conveyed by a deed for a gross sum, the deed describing the land by reference to recorded maps followed by a designation of the frontage and depth, the words specifying such frontage and depth are mere matters of description and do not constitute or import a covenant warranting the quantity. Rogers v. Peebles, 72 Ala. 529; Crampton v. Price, 83 Ala. 250, 3 So. 519, 3 Am. St. Rep. 718; Hess v. Cheney, 83 Ala. 254, 3 So. 791; Pearson v. Heard, 135 Ala. 352, 33 So. 673; Terry v. Rich, 197 Ala. 488, 73 So. 76; Cox v. Collins, 205 Ala. 491, 88 So. 440; Busbee v. Thomas, 175 Ala. 423, 57 So. 587; Brassell v. Fisk, 153 Ala. 558, 45 So. 70; 18 C. J. 282.
Stokely, Scrivner, Dominick Smith, of Birmingham, and B. J. Dryer, of Woodward, for appellee.
Under the statute it is not necessary to allege that the misrepresentation was made willfully to deceive or recklessly without knowledge. If the statement is made by mistake and innocently, it will constitute legal fraud. It is not necessary to set out in the complaint the words of the statute; it is sufficient merely to allege the circumstances and facts of the necessary matter to bring the action under the statute. The counts on which the case was tried are sufficient. Code 1923, § 8049; Jefferson County v. Gulf Ref. Co., 202 Ala. 510, 80 So. 798; Gulf Elec. Co. v. Fried, 218 Ala. 684, 119 So. 685; Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286; So. B. L. Ass'n v. Hughes, 222 Ala. 648, 133 So. 685. Where the statement of quantity in a deed is of the essence of the contract, it imports a covenant as to the quantity, and, where there are fraudulent misrepresentations as to the size or quantity, especially in suburban or city property where the size of quantity is material, relief will be granted to the purchaser when there is a substantial shortage in the quantity and a corresponding substantial shortage in value. Minge v. Smith, 1 Ala. 415; Hodges v. Denny, 86 Ala. 226, 5 So. 492; Manning v. Carter, 192 Ala. 307, 68 So. 909; Hill v. Johnson, 214 Ala. 194, 106 So. 814; Edmundson v. Mullen, 215 Ala. 297, 110 So. 391; Gulf Elec. Co. v. Fried, supra. An amendment adding a new count or statement of the cause of action relates back to the commencement of the suit so as to prevent the bar of the statute of limitations so long as the amendment refers to the same transaction, property, title, and parties as the original count. Code 1923, § 9513; First Nat. Bank v. Morgan, 213 Ala. 125, 104 So. 403; Pearson v. Birmingham, 210 Ala. 296, 97 So. 916; Birmingham B. R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219; Sov. Camp v. Carrell, 218 Ala. 613, 119 So. 640; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Haynes v. Phillips, 211 Ala. 37, 99 So. 356.
This case was tried on counts 4 and 5 as amended, in deceit. They are sufficient to state a cause of action. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286; Byars v. Sanders, 215 Ala. 561, 112 So. 127; Ex parte Tidwell, 205 Ala. 254, 87 So. 626; section 9531, form 21, Code.
While they do not expressly allege that the defendant made the representation to induce plaintiff to act, and while that is an element of deceit, there is no ground of demurrer addressed to such defect. King v. Livingston Mfg. Co., 180 Ala. 118, 126, 60 So. 143.
There was no demurrer or motion to strike addressed to the alleged defective claim of special damages in count 4. We do not construe assignment No. 22 to be sufficient for that purpose. It does not specify the averments in the counts 4 and 5, which are alleged to be objectionable, as statements of conclusions or mental processes. If such claim is defectively stated, and defendant wishes to present such defect by demurrer, it should be specified in thus pointing it out. Section 9479, Code.
We do not think any ground of demurrer to counts 4 and 5 is well taken.
The original complaint consisted of a single count for the breach of a warranty in the deed conveying the property to plaintiffs by defendant, and was filed September 6, 1928. The transaction occurred November 20, 1926. Counts 4 and 5 were filed May 10, 1929. They were in deceit, as we have shown, but they arose out of the same transaction and relate to the same subject-matter, and could have been joined in the original complaint. Code, § 9467. It is also apparent from the averments of the pleading that "they refer to the same transaction, property and title and parties as the original," and therefore they were proper matter of amendment and relate back to the commencement of the suit. Sov. Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640; Birmingham Belt R. R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219.
The pleas and replications were in short by consent, and opened the door to special defenses and special replications. This included, of course, the statute of limitations and replications to it.
Appellant contends that counts 4 and 5 were barred by the one-year statute. Appellees reply that the suit was begun within one year after the discovery of the fraud by plaintiffs. Section 8966, Code. What constitutes the duty of plaintiffs in this respect and what is sufficient to constitute a discovery of the fraud under the statute has been carefully stated by this court. Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286; Maxwell v. Lauderdale, 200 Ala. 648, 77 So. 22; Willis v. Rice, 157 Ala. 252, 48 So. 397, 131 Am. St. Rep. 55.
The testimony for the plaintiffs was that they could not tell anything about the dimensions of the lot or its front footage on Tuscaloosa avenue when they bought it, and did not know that it was not as represented until they had it surveyed a few months before they brought the suit. There was no breach of duty shown in this respect, and no circumstance which was sufficient to provoke inquiry as to the exact dimensions of the lot before the time when they made the actual discovery. The jury could find, therefore, that the suit was not barred by limitations even as respects counts 4 and 5.
There was no error committed by the court in overruling objections to the contract of sale and deed. They both sustain plaintiffs' claim that the defendant misrepresented the lot to be ninety feet front on Tuscaloosa avenue, and were a material feature of the transaction.
There was no error in respect to the ruling on motion for a new trial. There was ample evidence to sustain all the essentials of the cause of action and the amount of the damages.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.