Opinion
5 Div. 896.
April 11, 1933. Rehearing Denied June 6, 1933.
Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.
Action on a promissory note by the Night Commander Lighting Company against J. J. Coleman. From a judgment for defendant, plaintiff appeals.
Affirmed.
Pleas 5 and 6 set up fraud and deceit by plaintiff's agent in making sale to defendant of a lighting plant, the consideration for the note in suit, the fraud alleged being that the agent falsely represented that said plant, for the purpose for which defendant was buying the same, and which purpose was then known to the agent, would operate for six months on 100 pounds of carbide; whereas said plant, properly installed and operated, did consume in its operation 100 pounds of carbide for each period of two months. The pleas allege that defendant did not discover the misrepresentation at the time of making the purchase, but relied thereon, and claim damages in recoupment or set-off.
Replication 2 sets up that the contract for the purchase of the plant was in writing; that by the written contract plaintiff guaranteed the generator against all original defects in material or workmanship, reserving the right to correct any such defects; and that no other guaranty was embraced in the contract.
Replication A alleges that at the time of executing the note in suit defendant knew that the contract for the purchase of the lighting plant was in writing and contained a written warranty, and did not contain any warranty or representation as to the time said plant would operate on a given quantity of carbide; therefore, it is asserted, defendant waived his right to set up such matters in said pleas as a defense to the action.
Replication B is the same as A, except that it asserts an estoppel instead of a waiver by defendant.
Charge 1 refused to plaintiff (to which charge 2 is similar) is as follows:
"The court charges the jury that if you are reasonably satisfied from the evidence that the defendant, at the time he executed the note sued on, knew that the contract for the purchase price of the lighting plant was in writing and knew that such written contract contained no warranty, representation or promise as to the time such lighting plant would operate on a given quantity of carbide or fuel your verdict cannot be in favor of the defendant under his pleas numbered 5 or 6."
Charges 4 and 5, refused to plaintiff, were affirmative charges.
A. L. Crumpton, of Ashland, for appellant.
To constitute fraud, a misrepresentation must relate to a material fact in connection with the appliance, and must not be merely trader's talk. To constitute actionable fraud, the purchaser must have relied upon them to his hurt. Coleman v. Night Commander L. Co., 218 Ala. 196, 118 So. 377. If appellee executed the note with full knowledge that the plant was not warranted to operate for any definite time on any given amount of fuel, and if he then accepted a new and additional warranty covering the property bought, he waived any fraudulent representations that may have been made and is estopped to set up such defenses. Gilmer v. Ware, 19 Ala. 252; Thweatt v. McLeod, 56 Ala. 375; McGowen v. Garrard, 2 Stew. 479; Huckabee v. Albritton, 10 Ala. 657; Pollock v. Pope, 209 Ala. 195, 95 So. 894; 27 Cyc. 24.
Henry A. Teel, of Rockford, for appellee.
A waiver of fraud can only be accomplished where it is done with full knowledge of the fraud and all material facts and with the intention clearly manifested of abiding by the contract and waiving all right to recover for the deception. 27 C. J. 22; Huckabee v. Albritton, 10 Ala. 657; Pollock v. Pope, 209 Ala. 195, 95 So. 894; Thweatt v. McLeod, 56 Ala. 375; Gilmer v. Ware, 19 Ala. 252; Eagan Co. v. Johnson, 82 Ala. 233, 2 So. 302; McGowen v. Garrard, 2 Stew. 479. An estoppel must be based upon a full knowledge of the facts involved, and the person in whose favor it operates must have acted thereon and been injured thereby. 21 C. J. 1119. The written contract of purchase alleged in the replications which is silent as to any representations with respect to amount of fuel would not preclude a recovery by defendant for fraud on the part of plaintiff in making a misrepresentation as to the time the plant would operate on a given quantity of fuel. Cozzins v. Whitaker, 3 Stew. P. 322; Thompson v. Bell, 37 Ala. 438; Dixon v. Barclay, 22 Ala. 370; Nelson v. Wood, 62 Ala. 175; Blackman v. Johnson, 35 Ala. 252; Pierce v. Wilson, 34 Ala. 596; Ala. M. S. Co. v. Caffey, 213 Ala. 260, 104 So. 509; Brenard Mfg. Co. v. Jacobs Padgett, 202 Ala. 7, 79 So. 305; Berry v. Wooddy, 16 Ala. App. 348, 77 So. 942.
This is the second appeal growing out of this litigation. Judgment in favor of appellant, which resulted from the first trial, was reversed by our Supreme Court. See Coleman v. Night Commander Lighting Co., 218 Ala. 196, 118 So. 377. Upon the next trial, giving rise to the present appeal, appellee, who was the defendant, had judgment over against appellant (plaintiff) on his pleas of recoupment.
With the above-cited decision and opinion of the Supreme Court as our basis (Code 1923, § 7318), we shall undertake to treat only those rulings duly assigned and argued here as constituting prejudicial error. Fields v. First Nat. Bank of Haleyville, 216 Ala. 381, 113 So. 298.
There was no prejudicial error in sustaining appellee's demurrers to appellant's replications 2, A, and B, to appellee's pleas 5 and 6. Brenard Mfg. Co. v. Jacobs Padgett, 202 Ala. 7, 79 So. 305.
Neither was there prejudicial error in refusing to give to the jury appellant's written requested charges 1, 2, 4, or 5. Authorities supra. Nor in overruling its motion for a new trial. Id.
What we have said above disposes of all those assignments of error properly brought to our attention. We confess the abortiveness of our opinion; but have given careful consideration to all the questions decided. The very confused condition of the record sent up has rendered it next to impossible — without being, as we thought, unduly critical in our comments — to enter into any extended discussion of the questions upon which our decision was desired.
Suffice to say that there has been pointed out to us no ruling infected — as must likewise, under the rules, be pointed out to us — with prejudicial error. And the judgment appealed from is affirmed.
Affirmed.