J. A. Fay & Egan Co. v. Independent Lumber Co.

ANDERSON, J.

The bill in this case is filed to cancel or rescind a contract of sale which the complainant claims to have been induced to enter into through the fraudulent acts and representations of the respondents. It is no objection to the equity of the bill that the vendee may sue at law for a breach of warranty or for deceit. — Perry v. Boyd, 126 Ala. 162, 28 South. 711, 85 Am. St. Rep. 17; Cullum v. Branch, 4 Ala. 21, 37 Am. Dec. 725 ; Baptiste v. Peters, 51 Ala. 158.

Nor can there be any doubt as to the equity of the bill. It seeks to cancel the contract of sale for fraud and relies upon extrinsic evidence to establish said fraud, and negatives an adequate remedy at law.— Hodge v. McMahan, 137 Ala. 171, 34 South. 185; Merritt v. Ehrman, 116 Ala. 278, 22 South. 514; Andrews v. Frierson, 134 Ala. 631, 33 South. 6; Pinkston v. Boykin, 130 Ala. 483, 30 South. 398; Hafer v. Cole, 57 South. 757.

If the complainant was fraudulently induced to enter into the "contract and to execute the same, it would not, of course, be bound by any particular clause of same concluding it against setting up false and fraudulent representations within a proper and reasonable time. If the instrument was void for fraud in its execution, as alleged in complainant’s bill, it was of no more binding efficacy upon the complainant than if it had no existence, or were a piece of waste paper. — Burroughs v. Pac. Guano Co., 81 Ala. 255, 1 South. 212.

Nor does the bill show, upon its face, laches on the part of the complainant, as it expressly avers action and an offer to rescind as soon as it was finally demon *169 strated and ascertained that the representations, as made to the complainant, and which induced it to purchase the machine, were false. In other words, the bill avers that the detention of the machine and the failure to at once offer to rescind was superinduced by an effort on the part of the respondents to demonstrate that the machine would accomplish the work as represented, and it was given an opportunity to repair or regulate the same, and, after repeated efforts on its part to make it do the requisite work, it was demonstrated that it could not, and the complainant then and there offered to rescind and demanded a restoration of the status quo.

The bill plainly shows that the representations were more than the mere expression of an opinion and clearly sets out that the complainant was induced by said representations to purchase the machine and to enter upon the said contract.

The chancery court did not err in overruling the respondents’ demurrers to the bill, and the decree is affirmed.

Affirmed.

Dowdell, O. J., and Simpson, McClellan, and Somerville, JJ., concur. Mayfield and Sayre, JJ., are of the opinion that there is no equity in the bill, and dissent.