
    Brewer v. Arantz.
    
      Bill for Injunction and to Cancel Mortgage.
    
    1. Complainant cannot complain at sustaining demurrer to cross-hill. — Where a demurrer to a whole cross-bill presents but a single issue of law and is sustained, the complainant cannot. complain of the decree although it was based on one only of the several grounds of demurrer.
    2. Rescission on misrepresentation of fact; when. — A misrepresentation of fact by a vendor whether intended to deceive or not may entitle the vendee to a rescission, but to do so it must have entered into the trade to the extent at least that the vendee must have reasonably relied upon the statement as true, and it must have formed an inducement to his purchase. If the representation be in form of fact but is intended as a mere expression of opinion and is so understood by the vendee, or where it relates to matters which the vendee understands to be equally within his own knowledge, he is not entitled to rely or act on the statement.
    3. Same. — In determining whether a complainant’s case is brought within the principles governing misrepresentations by a vendor, the circumstances attending and leading up to the trade in which the misrepresentations are alleged to have occurred, the situation of the parties at that time and their subsequent conduct respecting it, may be examined and weighed. A purchaser may be ignorant of the quality of what he buys, yet if he believes himself informed and so relies on his own mistaken judgment in bargaining the loss he may suffer is not attributable to the fault of the vendor.
    4 Waiver of wrong from misrepresentation. — Where after full knowledge of the defects in lumber, which a complainant alleges resulted from defective logs sold to him under representations by his vendor, of quality on which he relied, the complainant sought further to ascertain whether the lumber was' saleable, and asked further indulgence on his notes given for the logs which were past due, and made no complaint or offer to rescind until effort was made by his vendor to collect the notes by the foreclosure of a mortgage given to secure them, such delay if not sufficient in itself to waive the alleged wrong is indicative that the complainant’s sense of injury was aroused rather by the impending sale than by imposition suffered in the original trade.
    
      Appeal from Morgan Chancery Court.
    Heard before Hon. W. H. Simpson.
    J. B. Brewer brought his bill against George Arantz & Brothers to cancel a mortgage and for injunction to prevent the sale of the property mortgaged.
    The mortgage was executed to secure the payment of notes by the complainant to the defendants which were made for the purchase money of certain saw logs purchased by complainant from defendants. The bill alleges fraud and deceit on the part of defendants. Answer was made denying the allegations of the bill and a cross-bill filed to foreclose the mortgage. The facts are sufii- . ciently stated in the opinion. The principal issue of fact was whether or not there was deceit, and this issue was decided in favor of the defendant in the trial court, and the decree affirmed on this appeal.
    Arthur L. Brown and W. R. Francis, for appellant.
    (1) . If the complaint relied on the representations of the defendants he had the right to rescind the contract. Moncrief v. Williams, 93 Ala. 373; Henry v. Allen, 93 Ala. 197; Bullock v. Tuttle, 90 Ala. 435; Porter v. Collins, 90 Ala. 150; Young v. Arantz Bros., 86 Ala. 116. (2) . This right is not barred by the mere fact that the complainant had the opportunity to discover that the representations were false. — Baker v. Lever, 67 N. Y. 304; Jackson v. Collins, 39 Mich. 557; Kendall v. Wilson, 41 Yt. 567. (3). When the fact and its materiality are known to the seller and the' suppression is willful, it may be regarded as done to deceive or mislead, and the purchaser not having equal access of information may bt regarded as defrauded. — Jordan & Sons v. Pickett, 78 Ala. 331; Hanson v. Edgerly, 29 N. H. 343; Cornelms v. Moelcy, 7 Penn. 293. (4). Offer to rescind made in reasonable time. — Bullock v. Tuttle, 90 Ala. 435; Crendor jf v. Tallman, 90 Ala. 441.
    S. T. Wert, contra.
    
    — (1). On a sale of property open to examination by purchaser, there is no implied warranty.- — 59 Ala. 648. (2). Contract must be repudiated in reasonable time. — 62 Ala. 175; 82 Ala. 302; 86 Ala. 116. See also Joseph v. Decatur Land éc. Co., 14 So. Rep. 739; Johnson v. Rogers, 20 So. Rep. 929.
   SIIAKPE, J.

— The demurrer to the whole cross-bill presented but a single issue of law and the decree thereon was effective only so far as it disposed of that issug. The result was to sustain the demurrer- and that result-being in the complainant’s favor he cannot complain.of the decree though it was based upon only one of- the- sev eral grounds of demurrer. — McDonald v. Pearson, 114 Ala. 630; Steiner v. Parker, 108 Ala. 357.

Tin* objection made to a part of the cross-bill by the third demurrer, is contained and better presented in the sixth Avhich AAras sustained. There Avas no error- in overruling the other deuiurrers Avhich were assigned to parts only of the bill.

The original bill seeks the amendment of a contract whereby the defendants sold to complainant certain saAv logs, and to enjoin a threatened «ale of land under power in a mortgage given to secure the price of the logs, as evidenced by notes and to cancel the mortgage and notes and also to recoven- money AAdiicli had been.paid on the price.

The ground relied on for relief is alleged to be that the defendants represented the logs to be sound and thereby induced the complainant to buy them Avhen in fact they were so Avorm-eaten as to be unfit to be saAvecl into lumber.

The ansAver denies the material allegations of the bill and is made a cross-bill for the foreclosure of the mortgage.

A misrepresentation of fact by a vendor whether intended to deceive or not may entitle the vendee to a rescission, but to do so it must have entered into the trade to the extent at least that the vendee must have reasonably relied upon the statement as true and it must have formed an inducement to his purchase. — Trippe v. Trippe, 29 Ala. 637; Foster v. Gressett’s Heirs, Ib. 393; 2 Pom. Eq. Jur., § 891; 1 Benjamin on Sales, § 691. If the representation be in form of fact, but is intended as a mere expression of opinion and is so understood by the vendee, or AA'here it relates to matters AAdiicli the vendee understands to be equally within his oavu knowledge, he is not entitled to rely or act on the statement. — 2 Pom. Eq. Jur., § 892, and authorities, supra.

In determining Avhether the complainant’s case is brought within these principles, the circumstances attending and leading up to the trade, the situation of the parties at that time, and their subsequent conduct respecting it may be examined and Aveighed.

It appears from the record that the complainant operated a saAV mill on Flint river and defendants operated another mill on connecting Avaters and uoavu stream from complainant’s. Defendants owned a collection of logs Avhich for tAvo or three years had lain in the river aboAre complainant’s mill and Avhich they could not conveniently carry past a bridge at that mill. This situation brought about an agreement under Avhieh complainant begun sawing the logs and accounting for them at a certain rate per thousand feet estimated and measured from the sound part. This continued about three weeks when a difference arose about measurements, and on May 9th, 1895, it was agreed that complainant should buy the remainder of the logs at five hundred dollars, and for the price three notes secured by the mortgage Avere given, each for one-third of the price and payable respectively at one, tAvo and three months.

It Avas at this sale that the misrepresentation is alleged to have been made. Complainant -testifies to it. substantially as alleged and he is corroborated by the witness Williams AArho says he heard the trade between complainant and defendant Frank Arantz. We find no express denial of these statements by Arantz, but he testifies that on the same occasion, while Williams Avas not present, he said to the complainant plainly “that he could see the defects as well as I could, that he had sawed the lumber out of the logs and kneAV more about them than I myselfand of this there is no express denial by the complainant. This statement of Arantz, if made as he says, was a disclaimer of superior 'knowledge AArhich should have been understood as qualifying the representation imputed to him by the complainant. But without such statement it Avould seem that complainant must have depended upon his oavu observation AArhich he kneAV was more recent than that- of Arantz avIio had saAved no logs from' that collection since the previous year.

Complainant testifies in substance that lie bad little practical experience in tlie business and left it mainly to his sawyer; that worm holes filled Avith dust and Avere not visible Avithout close inspection till the lumber dried and that he first discovered the AA'orm-eaten condition about the 1th or 5th of September Avhen a part of the lumber Avas inspected and rejected by an intended purchaser. '

A purchaser may be ignorant of the quality of AAdiat he buys, yet if he believes himself informed, and so relies on his own mistaken judgment in bargaining, the loss lie may suffer is not attributable to fault of the vendor. Complainant had seen manv of the logs dissected into lumber in his mill, and had them measured Avith special reference to soundness. There Avas ho apparent cause for further investigation as to quality or for looking to Arantz for information. After fulllcnoAvledge of the defects complainant sought further to ascertain whether the lumber Avas saleable. While doing so he wrote defendants’ attorney asking for further indulgence on the notes, both of which were past due. No complaint or offer of rescission was made except by the bill which Avas filed the day before the sale Avas to occur. Such delay, if not sufficient in itself to waiye the alleged Avrong, is indicative that complainant’s sense of injury was aroused rather by the impending sale than by imposition suffered in the original trade.

The chancellor did not err in the decree rendered and it Avill be affirmed at appellant’s cost.

Affirmed.  