7 Div. 198.

68 So.2d 62 (1953)


Supreme Court of Alabama.

Attorney(s) appearing for the Case

Frank M. James, Birmingham, for petitioners.

Hawkins & Copeland, Gadsden, opposed.


In denying the petition for certiorari to the Court of Appeals we emphasize the fact that the only count submitted to the jury was one in deceit, and that the only question as to its sufficiency was raised by a request for the affirmative charge. When so considered, the only inquiry as to its sufficiency is whether it states a cause of action. As a count in deceit, it may be subject to some special ground of demurrer not here involved. So that in denying certiorari this Court is not approving the count as being free from demurrer, but only that it states a cause of action. This is consistent with the opinion of the Court of Appeals.

There was a former appeal in this case reported in 35 Ala.App. 587, 50 So.2d 788. It is made clear in the opinion on that appeal that the only question considered was whether the affirmative charge was properly refused on the contract count. Finding that it was improperly refused, the judgment was reversed without considering whether the affirmative charge requested as to the count in deceit was improperly refused. On this appeal the question relates only to the count in deceit. The affirmative charge as to that count was refused by the trial court and that ruling affirmed by the Court of Appeals in the instant case.

Petitioner here sets out in brief two propositions to support its contention of error by the Court of Appeals, and both relate only to the refusal by the trial court of the affirmative charge as to the count in deceit, one that the evidence is not sufficient to show that petitioner did not intend to perform his promise which was an inducement to the contract, and the other is with reference to the "lifetime certificate" as a diploma. The opinion of the Court of Appeals sufficiently answers both contentions. So that the petition for certiorari should be denied.

The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.

Writ denied.



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