Opinion
6 Div. 349.
January 12, 1939. Rehearing Denied February 9, 1939.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Leader, Hill, Tenenbaum Seedman, of Birmingham, for appellant.
The circuit court rule invoked by appellee, if construed as contended by appellee, is in conflict with the statutes, Code 1923, §§ 6433, 6664. Brown v. McKnight, 216 Ala. 660, 114 So. 40; Ex parte Hill, 205 Ala. 631, 89 So. 58; Jefferson County Burial Soc. v. Cotton, 222 Ala. 578, 133 So. 256; Porter v. State, 27 Ala. App. 441, 174 So. 313. Allegations of fraud in pleading to be sufficient must set forth the facts constituting the fraud with reasonable certainty. Hyman v. Langston, 210 Ala. 509, 98 So. 564; Zuckerman v. Cochran, 229 Ala. 484, 158 So. 324. A plea is bad which sets up a statement of facts of a contemporaneous verbal agreement which is repugnant to and contradictory of the terms of the note and of the intentions of the parties expressed therein. Kilgore v. Arant, 25 Ala. App. 356, 146 So. 540; West v. Kelly's Ex'rs, 19 Ala. 353, 54 Am.Dec. 192; Gliddens v. Harrison, 59 Ala. 481. A failure to fulfill a mere promise or undertaking something to be done in the future alone will not constitute actionable fraud, but to be actionable it must be alleged and proved that the promise was made with the intention to deceive and with no intention to fulfill at the time and injury to the defrauded party must result therefrom. Zuckerman v. Cochran, supra; Snell Nat. Bank v. Janney, 219 Ala. 396, 122 So. 362; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Preston Motors Corp. v. Wood, 208 Ala. 172, 94 So. 70; 12 R.C.L. 261; Wall v. Graham, 192 Ala. 396, 68 So. 298. In absence of fraud in procuring the signature to a written contract by misrepresenting or concealing its contents, it cannot be impeached by proving a different contemporaneous agreement or because the party signing was ignorant of its legal effect. Holczstein v. Bessemer T. S. Bank, 223 Ala. 271, 136 So. 409; Jackson v. Sample, 234 Ala. 75, 173 So. 510; Hamilton Fur. Co. v. Brenard Mfg. Co., 215 Ala. 187, 110 So. 153. If evidence tends to vary or contradict the writing or to defeat its operation, such evidence is inadmissible. Perkins Oil Co. v. Davis, 228 Ala. 190, 153 So. 417; Ford v. Southern Motor Co., 208 Ala. 170, 93 So. 902.
Rosenthal Rosenthal, Walter S. Smith, and Walter S. Smith, Jr., all of Birmingham, for appellee.
The judges of the circuit courts are authorized to make rules. Code 1923, § 6689; Jefferson County Burial Soc. v. Scott, 218 Ala. 354, 118 So. 644. In order that a bill of exceptions may become a part of the record on appeal, it must be prepared in conformity with the requirements of statutory provisions and rules of practice. Failure of strict compliance requires that a bill be stricken. 4 C.J.S., Appeal and Error, p. 1259, § 777, note 32; Jefferson County Burial Soc. v. Scott, supra; National Pyrites Copper Co. v. Williams, 206 Ala. 4, 89 So. 291; Edinburgh-American L. M. Co. v. Canterbury, 169 Ala. 444, 53 So. 823; Baker v. Central of Ga. R. Co., 165 Ala. 466, 51 So. 796; King v. Hill Shafer, 163 Ala. 422, 51 So. 15; Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843; Leeth v. Kornman, Sawyer Co. 2 Ala. App. 311, 56 So. 757; Tennessee C., I. R. Co. v. Perry, 10 Ala. App. 371, 64 So. 651; Factors Mill End Distributors v. Rosenthal, 229 Ala. 644, 159 So. 72. Parol evidence is admissible, in an action on a note, of an agreement pursuant to which the note was obtained by virtue of which a right of set-off exists. Bromfield v. Trinidad N. I. Co., 10 Cir., 36 F.2d 646, 71 A.L.R. 542; Burke v Dulaney, 153 U.S. 228, 14 S.Ct. 816, 38 L.Ed. 698; 22 C.J. 1164, 1165; Berney v. Steiner Bros., 108 Ala. 111, 19 So. 806, 54 Am.St.Rep. 144. A written contract may be modified by subsequent parol agreement. Shriner v. Craft, 166 Ala. 146, 51 So. 884, 28 L.R.A., N.S., 450, 139 Am.St.Rep. 19; Prestwood v. Eldridge, 119 Ala. 72, 24 So. 729; Commercial Credit Co. v. Perkins, 236 Ala. 616, 184 So. 178; Hartford v. Attalla, 119 Ala. 59, 24 So. 845; Langford v. Cummings, 4 Ala. 46; McKenzie v. Stewart, 196 Ala. 241, 72 So. 109. A false promise not intended to be performed but made to trick and deceive another into execution of a written instrument is a fraud and may, in an action on the instrument, be shown by any competent evidence. Schwab v. Carter, 226 Ala. 173, 145 So. 450; Councill v. Sun Ins. Office, 146 Md. 137, 126 A. 229, 51 A.L.R. 29; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286. The plea affords a legal implication of knowledge as to falsity of the promise. It is sufficient. Carry v. Sylvia y Cia, 192 Ala. 550, 68 So. 891, Ann.Cas.1917E, 1052.
The submission was on motion to strike bill of exceptions and on merits.
The matter presented by way of motion to strike the bill of exceptions is not efficacious for such purpose. The judge of the circuit court signed the same within the requirements of the statute. The rule of the Jefferson County Circuit Court, in question, may not change or vary the terms of the general statutes as to bills of exceptions. The motion is overruled.
The attention of this Court was directed, on oral argument, to the action of the trial court in overruling plaintiff's demurrers to defendant's plea number seven. This was presented by grounds of demurrer numbered 3, 12, and 13.
It has long been the rule of this jurisdiction that allegations of fraud in a pleading must set forth the facts constituting the fraud and to be sufficient must do this with reasonable certainty. Zuckerman v. Cochran, 229 Ala. 484, 158 So. 324; Hyman v. Langston, 210 Ala. 509, 98 So. 564. That is to say, a plea is bad which sets up a statement of facts of a contemporaneous verbal agreement which is repugnant to and contradictory to the terms of the written instrument declared upon and the express intention of the parties therein contained. West West v. Kelly's Ex'rs, 19 Ala. 353, 54 Am.Dec. 192; Gliddens v. Harrison, 59 Ala. 481; Jackson v. Sample, 234 Ala. 75, 173 So. 510; Davenport Harris Undertaking Co. v. Roberson, 219 Ala. 203, 121 So. 733; James v. Cortright, 220 Ala. 578, 126 So. 631.
It may be observed that the recent decisions are to the effect that: "While a failure to fulfill a mere promise or undertaking — something to be done in the future — alone will not constitute actionable fraud, yet if with intent to deceive a promise is made with no intention of fulfillment at the time, and injury to the defrauded party results therefrom, fraud may be predicated thereon, notwithstanding the future nature of the representations. This is the settled rule in this state (Snell National Bank v. Janney, 219 Ala. 396, 122 So. 362; Schwab v. Carter, 226 Ala. 173, 145 So. 450; Nelson v. Shelby Mfg. Imp. Co., 96 Ala. 515, 11 So. 695, 38 Am.St.Rep. 116; Bradfield v. Elyton Land Co., 93 Ala. 527, 8 So. 383; Cooke v. Cook, 100 Ala. 175, 14 So. 171; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Wall v. Graham, 192 Ala. 396, 68 So. 298), and is in accord with the current of authority elsewhere (12 R.C.L. 261; 51 A.L.R. 63)." Zuckerman v. Cochran, 229 Ala. 484, 485, 158 So. 324, 325.
See, also, Snell National Bank v. Janney, 219 Ala. 396, 122 So. 362; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Preston Motors Corporation v. Wood, 208 Ala. 172, 94 So. 70. Such are the general authorities. 12 R.C.L. 261.
The special plea set up a collateral agreement inconsistent with the terms of the written instrument in question. Evidence that tended to contradict or vary the writing or defeat its operation is inadmissible in pleading and evidence. Perkins Oil Co. of Delaware v. Davis, 228 Ala. 190, 153 So. 417.
The action of the trial court in overruling plaintiff's demurrer to defendant's plea seven is duly assigned as error and presented by argument. The suit being brought upon an unconditional promise to pay, and there being no allegation of any facts showing fraud in procuring the signature by misrepresenting or concealing the contents of the instrument in question, there can be no alteration or contradiction of that instrument by parol agreement which was alleged to have been made at the time of execution of the written agreement. Holczstein et al. v. Bessemer Trust Savings Bank, 223 Ala. 271, 136 So. 409, and authorities there cited.
The foregoing is sufficient to indicate the error of the trial court in overruling demurrer to plea seven.
It is unnecessary to discuss other questions, as the case should be tried on proper issues.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.