Opinion
6 Div. 713.
October 26, 1922.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Black Harris, of Birmingham, and Goodwyn Ross, of Bessemer, for appellant.
A false statement by a stock salesman that a certain man, known to and trusted by the prospective purchaser, is president of the corporation, and that the corporation is organized under the laws of Alabama, when the salesman knows it is incorporated under the laws of another state, is a fraud on the purchaser, vitiating the sale. 127 Ala. 513, 29 So. 459; 33 Cal.App. 763, 166 P. 835; 149 Iowa, 594, 128 N.W. 954; 26 C. J. 1154; 14 C. J. 606. Where there is intentional fraud, the failure to make due inquiry to discover the fraud is no bar to an action by the person defrauded. 161 N.C. 1, 76 S.E. 634; 176 N.C. 325, 97 S.E. 42; 95 App. Div. 202, 88 N.Y. Supp. 401; 32 N.Y. 275; (Ark.) 73 S.W. 793; 26 C. J. 1152.
London, Yancy Brower, of Birmingham, for appellee.
No amendment to a complaint will be authorized which will allow a recovery upon a cause of action accruing subsequent to the institution of the suit, nor the adding of a cause of action barred by the statute of limitations. 74 Ala. 170; 59 Ala. 570; 57 Ala. 107. Under the statute, when amendment is properly allowed, it relates back to the filing of the suit in so far as the statute of limitations is concerned. Code 1907, § 5367; 200 Ala. 20, 75 So. 332; 107 Ala. 548, 76 So. 904. Where the defendant is entitled to the general affirmative charge, errors committed on the trial will be error without injury. Sup. Ct. Rule 45 (175 Ala. xxi, 61 South. ix); 14 Ala. App. 467, 70 So. 956.
The case has been before this court, and is reported in 200 Ala. 257, 76 So. 17; 202 Ala. 683, 81 So. 659.
On the last trial, in addition to the common counts, the complaint was amended by adding counts 8 to 11, inclusive. On motion count 10 was stricken (Liverpool London G. Ins. Co. v. Lowe (Ala. Sup.) 93 So. 765; L. N. v. Echols, 203 Ala. 627, 84 So. 827); and counts 6, 7, and 8 were eliminated by demurrer. The trial was had on common counts and special counts 9 and 11. An amendment to the complaint that is not a departure relates to the filing of the original complaint. Barnett v. Dowdy, 207 Ala. 641, 93 So. 638; Lisenby v. Capps, 200 Ala. 20, 75 So. 332.
Ante, p. 12.
To the complaint defendant replied the several statutes of limitation and laches in the exercise of the right of rescission, because of the alleged fraudulent representations, after discovery or after the same "ought to have been discovered by the exercise of reasonable diligence."
Representations by agents selling stock in corporations and frauds inducing the same have been frequently discussed in this jurisdiction. Capital Securities Co. v. Gilmer, 190 Ala. 340, 67 So. 258, Ann. Cas. 1917A, 888; Capital Security Co. v. Owen, 196 Ala. 385, 72 So. 8; Mutual Loan Soc. v. Letson, 200 Ala. 251, 76 So. 17; King v. Livingston Mfg. Co., 192 Ala. 269, 68 So. 897; Ala. F. M. Works v. Dallas, 127 Ala. 513, 29 So. 459; Stone v. Walker, 201 Ala. 130, 77 So. 554, L.R.A. 1918C, 839.
The issues presented by the pleadings made competent evidence tending to show the fraud averred to have been perpetrated on plaintiff as to misrepresentation of the situs of incorporation, who its executive officers were, its stockholders, dividends that had been declared, and properties owned by the corporation. Ala. F. M. Co. v. Dallas, supra; Southern States F. C. I. Co. v. Tanner, 180 Ala. 30, 31, 32, 60 So. 81.
The general affirmative charge was given for defendant. If there was evidence reasonably affording an inference adverse to the right of defendant, a jury question was presented. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; N.C. St. L. v. Crosby, 194 Ala. 338, 70 So. 7; B. R. L. P. Co. v. Enslen, 144 Ala. 343, 39 So. 74. A careful consideration of the evidence convinces us that the case should have been submitted to the jury on the facts as to whether or not plaintiff was defrauded, and, if so, when he discovered that fraud. Code, § 4852; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124; Sims v. Riggins, 201 Ala. 99, 77 So. 393. So, also, should the court have permitted the cross-examination of defendant's witness as to the classes or kinds of stock which he represented as the selling agent to the plaintiff as being that to be sold and delivered to him on consummation of sale.
It is unnecessary to discuss the other questions presented. For the giving of the general affirmative charge at defendant's request, the judgment is reversed and the cause is remanded.
Reversed and remanded
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.