The opinion
BBOWN, P. J.
[1 ]
It does not appear from the averments of the fourth count with certainty to a common intent whether the plaintiff relies on a warranty and a breach thereof or on a contract to give a warranty and a breach of such contract. The averments predicated on the theory of the existence of the warranty are clearly repugnant to the other theory stated, rendering the count lacking in that degree of certainty requisite to present an issue of law or fact and subject to the objection pointed out in the demurrer, which-was erroneously overruled. Sibley v. Barclay, 14 Ala. App. 422 ,
70
South. 201 ; Posey v. Hair, 12 Ala. 568 ; Weller v. Camp, 169 Ala.
275,
52 South. 929 , 28 L. R. A. (N. S.) 1106.
[2]
Evidence was offered by the plaintiff tending to support both of the theories stated in the fourth count, and one of these, that ,the defendant contracted to furnish, a five-year written warranty, and alleging a breach of such contract, is not covered by any other count of the complaint, and for this reason it cannot be said that this error was without injury. ,
[3]
Much of the appellant’s argument is devoted to showing that the court reached an erroneous conclusion as to the facts, but, as no assignment of error presents this question, it cannot be considered. Bowdon Lime Works v. Moss, 14 Ala. App. 439 , 70 South. 292 .
[4]
If the defendant’s agent fraudulently misrepresented the contents' of the written order to the plaintiff, and thereby obtained the plaintiff’s signature, it was permissible for the plaintiff to show these facts in avoidance of the obligation stated in the order. Prestwood v. Carlton, 162 Ala. 332 , 50 South. 254 .
[5,6]
The plaintiff relies on-an express contract to sustain his cause of action, and the evidence of the custom in Cleburne county as to warranties or guaranties given by dealers in buggies is clearly immaterial. The evidence shows without dispute that the defendant received and retained the purchase money paid by the plaintiff for the buggy in question, and undel- the count for deceit it was permissible for the plaintiff to show material representations made by the defendant's agent in the sale of the buggy, as to its superior qualities, the character of the material used in its construction, etc., and the falsity of such representations. Tabor v. Peters, 74 Ala. 90 , 49 Am. Rep. 804 ; Brown v. Freeman, 79 Ala. 409 ; Young v. Arntze, 86 Ala. 120 , 5 South. 253 ; Harton v. Belcher, 195 Ala. 186 , 70 South. 141 ; Baker v. Clark, 14 Ala. App. 156 , 68 South. 593 .
This disposes of all the questions insisted upon in argument, and for the error pointed out the judgment is reversed, and the cause is remanded.
Beversed and remanded.