Donald-Richard Co. v. Keel , 18 Ala. App. 150 ( 1921 )

Plaintiff sued for goods, wares, and merchandise sold and delivered upon a written order. Defendant pleaded that his signature to the order had been procured by fraud and misrepresentation, and that upon discovery of the fraud he had rescinded and redelivered the merchandise to plaintiff. Plaintiff filed a replication, in effect denying the allegations of fraud in the plea and undertaking to set up an estoppel against the defendant, by reason of certain statements in the written order alleged to have been fraudulently obtained. On motion this replication was stricken. We do not pass upon the sufficiency of the plea, for the reason that no assignment of error takes the point. We must therefore consider the plea as a complete answer to the complaint. That being the case, if the plea is true, the whole transaction is vitiated, there being no rule better known to the law than that fraud vitiates any transaction into which it enters. On the other hand, if the defendant fails to sustain his plea plaintiff would be entitled to a judgment. But statements contained in the order, if the order itself is void by reason of the fraud as alleged, could not be pleaded by way of estoppel against the defendant. The plaintiff got the benefit of every reply to which he was legally entitled under the general replication. Burroughs v. Pacific Guano Co., 81 Ala. 255-259, 1 So. 212; C. W. Ry. v. Bridges, 86 Ala. 448, 5 So. 864, 11 Am. St. Rep. 58.

The only other assignment of error is that the court refused to give at the request of plaintiff, the general charge. There was evidence from which the jury was authorized to find a verdict for defendant on his plea, and hence the charge was properly refused.

We find no error in the record, and the judgment is affirmed.

Affirmed.