
    (86 South. 108)
    Ex parte MARLER. UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. MARLER.
    (6 Div. 49.)
    (Supreme Court of Alabama.
    June 3, 1920.)
    Certiorari to Court of Appeals."
    Proceeding between L. A. Marler and the United States Cast Iron Pipe & Foundry Company. Judgment for the former was reversed on appeal by the Court of Appeals (86 South. 103), and L. A. Marler petitions for certiorari to the Court of Appeals to review and revise such judgment.
    Writ denied.
    Harsh, Harsh & Harsh, of Birmingham, for appellant.
    Having been induced to sign the release through fraud, Marley was not obliged to tender the money back in order to maintain his act. 137 Ala. 414, 34 South. 997; 170 Ala. 530, 54 South. 280; 127 Mass. 86, 34 Am. Rep. 349 ; 124 Iowa, 257, 99 N. W. 1069; 03 Mich. 690, 30 N. W. 688; 126 Cal. 560, 58 Pac. 1042 ; 34 Oye. 1073. The fact that he did not read the paper is no excuse for the fraud practice only. 137 Ala. 414, 34 South. 997; 104 Ala. 503, 16 South. 522, 53 Am. St. Rep. 77; 100 Ala. 132, 14 South. 746; 117 Ala. 263, 22 South. 975; 81 Ala. 255, 1 South. 212.
    Coleman & Coleman and Spain & Fisk, of Birmingham, for appellee.
    One must rescind in toto or not at all. 123 Ala. 439, 26 South. 290-. One cannot hold onto a part of a contract and avoid the other. 144 Ala. 256, 40 South. 394, 6 Ann. Cas. 804; 154 Ala. 576, 45 South. 906; 158 Ala. 470, 48 South. 546; 170 Ala. 530, 54 South. 280; 2 Ala. 181; 22 Ala. 249.
   McCLELLAN, j.

Petition for certiorari to the Court of Appeals to review the action of that court in reversing the judgment in the above-styled cause, reported in 86 South. 103. In the opinion of Presiding Judge Bricken, concurred in by Judge Merritt, it was held that—

“There is no evidence as to the -exact amount that was due plaintiff for insurance, if anything was due. and there is no evidence as to whether the $50 that was paid plaintiff was more than the insurance or less than the insurance.”

The writ prayed for is denied — a conclusion in which ANDERSON, C. J., and Mc-OLBLLAN, SAYRE, SOMERVILLE, GARDNER, and BROWN, JJ., concur; THOMAS, J., not sitting.

SAYRE, SOMERVILLE, GARDNER, and BROWN, JJ., express this opinion:

“Our judgment is that in the matter of the release the dissenting opinion of' Samford, J., in the Court of Appeals, correctly states the law. However, the application of that law to the ease in hand involves an inquiry of fact, and on such questions this court will not review the Court of Appeals. It results that the application for certiorari must be denied.”

ANDERSON, C. J., and the writer entertain the view that the opinion of the Court of Appeals, by Presiding Judge Bricken, correctly interpreted and applied the principles of law as pronounced in B. R., L. & p. Co. v Jordan, 170 Ala. 530, 54 South. 280, among other decisions in that line.

Writ denied.  