Opinion
5 Div. 950.
December 16, 1926. Rehearing Denied March 31, 1927.
Appeal from Circuit Court, Coosa County; E. S. Lyman, Judge.
Riddle Riddle, of Talladega, for appellant.
Fraud in procuring execution of note is a good defense to an action thereon. Hooper v. Whitaker, 130 Ala. 324, 30 So. 355; Bomar v. Rosser, 123 Ala. 641, 26 So. 510; 8 C. J. 780. Breach of promise inducing the making of a note is good defense as against all but innocent purchasers. Mizell v. Farmers' Bank, 180 Ala. 568, 61 So. 272; 8 C. J. 744, 747. Collateral agreement may be set up in defense. 8 C. J. 739. Partial failure of consideration is a good defense; fraud in procuring and failure of consideration is raised by plea of set-off and plea of failure of consideration. Mizell v. Farmers' Bank, supra; Thompson v. Hudgins, 116 Ala. 93, 22 So. 632.
John A. Darden, of Goodwater, L. H. Ellis, of Columbiana, and Holley Milner, of Wetumpka, for appellee.
A plea that defendant received no consideration is bad. 13 C. J. 740. In pleading, a characterization of acts as fraudulent, unless they are such per se, is not sufficient. 27 C. J. 31. A pleading setting up fraud must aver that the party setting up fraud as a defense was deceived thereby, relied on the representations, and took certain action to his prejudice. 27 C. J. 36.
The appeal is to review the ruling upon the pleading. The effect of pleas 4 and 5 was to limit the consideration to one of defendant's, and was insufficient against the demurrer. If the contract has a consideration to support it, this is sufficient though the consideration may have been received by a third person, for whose benefit the defendant contracted. 13 C. J. p. 740, § 884; Moore v. Williamson, 213 Ala. 274, 104 So. 645, 42 A.L.R. 981. The defendant had the benefit of these pleas under plea A as follows: "The defendant in said cause says that the instrument sued on is without consideration."
Plea 8 is defective in averring facts that did not show fraud. The averment of fraud is a conclusion of the pleader (27 C. J. 31; Hutchinson v. Bozeman, 16 Ala. App. 169, 76 So. 406; Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933), as to a recoupment, called set-off in plea, on collateral matter, and it is not specifically averred that the defendant was misled by any fraudulent misrepresentations of the present fact, in which the bank participated, but that the alleged fraud was on the part of the lumber company, and was as to the matter that the lumber company agreed to do in the future. Greil Bros. v. McLain, 197 Ala. 136, 72 So. 410.
Pleas B and C are subject to demurrers directed thereto. It is not averred that the bank was called upon to plane the lumber, or that it violated any contractual obligation it had made with the defendant, or upon which he relied and parted with value.
The court overruled the demurrer to plea X and sustained same to plea Y. Defendant had the benefit in plea X, of matter sought to be set up, had he not voluntarily withdrawn plea X, thereby depriving himself of said plea. By his own act, he was deprived of the benefit of material matter he sought to set up in plea Y and may have been proven under plea X.
We find no reversible error, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.