STANDARD PAINT LEAD WORKS, INC. v. INGRAM HARDWARE

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Docket Number

6 Div. 672.

Attorney(S)

Roy H. Manly, of Birmingham, for appellant. The condition stated on the order shows notice to the customer that the agent had no authority to make any different agreement or to ship the goods on consignment. Fulton v. Sword Medicine Co., 145 Ala. 331, 40 So. 393. Misrepresentations as to contents of a writing which both have the opportunity and ability to read, and which both sign, where the one does not fraudulently prevent the other from reading it, does not vitiate the writing. Dunham Lbr. Co. v. Holt, 123 Ala. 336, 26 So. 663. The general rule is that one who deals with an agent is bound to ascertain the nature and extent of his authority. Burks v. Hubbard, 69 Ala. 379; Merrill v. Worthington, 155 Ala. 281, 46 So. 477. London, Yancey Brower and Al. G. Rives, all of Birmingham, for appellee. Where there is evidence that defendant was induced to sign or enter into a contract by fraud and imposition, the question should be submitted to the jury. It is competent to show the true contract. Defendant may avoid a contract procured by fraud notwithstanding he neglected to read it. 13 C.J. 782; Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 So. 144; J. B. Colt Co. v. Price, 210 Ala. 189, 97 So. 696; Dean v. Brown, 201 Ala. 465, 78 So. 966; Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902; Brenard Mfg. Co. v. Cannon, 209 Ala. 626, 96 So. 760; Tillis v. Austin, 117 Ala. 262, 22 So. 975; Leonard v. Roebuck, 152 Ala. 312, 44 So. 390; Commercial Finance Co. v. Cooper Bros., 196 Ala. 285, 71 So. 684.

Judges

ANDERSON, C. J.

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STANDARD PAINT LEAD WORKS, Inc., v. INGRAM HARDWARE CO.

ANDERSON, C. J.

The first three assignments of error, as well as the chief argument in brief of appellant's counsel, relate to the action of the trial court in refusing the appellant's motion for a new trial. It is sufficient to say that the bill of exceptions does not disclose any exception to the action of the trial court in overruling the motion for a new trial. The fact that this may appear in the record proper will not suffice. Grace v. Old Dominion Garment Co., 213 Ala. 550, 105 So. 707, and cases there cited. We cannot therefore review the action of the trial court in refusing the motion for a new trial.

The appellant was not injured by the question embodied in the fourth assignment of error asked by opposing counsel, as the witness gave a negative answer thereto.

The question asked the defendant, and embodied in the fifth assignment of error, was not patently improper and was not subject to the grounds of objection assigned thereto. It did not, on its face, tend to contradict the written instrument, and merely sought the representation or inducement leading up to the execution of said instrument. If the answer disclosed improper evidence there should have been a motion to exclude same.

The judgment of the circuit court is affirmed.

Affirmed.

GARDNER, BOULDIN, and FOSTER, JJ., concur.

STANDARD PAINT LEAD WORKS, Inc., v. INGRAM HARDWARE CO.

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