The opinion
MoOLELLAN, C. J.
There was evidence before the jury from which they might have concluded that Gorton was insolvent at the time he purchased the goods from claimant, that he then had no intention of paying for the goods or reasonable expectation of being able to pay for them, and that he failed to communicate these facts to the seller. On these facts he was guilty of such fraud in the transaction as authorized the seller upon afterwards coming to a knowledge of it to rescind the sale and reclaim the goods, if he unis induced by the fraud to make the sale. —Maxwell v. Brown Shoe Co., 114 Ala. 304 . If, however, the fraud of the buyer, assuming he rvas guilty of fraud, did not induce the seller to part •with his goods, but he acted to that end solely upon independent information as to the buyer’s good faith and ability to pay, he has no right of rescission. —Darby & Co. v. Kroell, 92 Ala. 607 .
In this case the seller sought and obtained independent information as to Gorton’s financial condition, etc., etc., before shipping him the goods. By the act of purchasing Gorton impliedly represented to the seller that he was or would be able to pay for them, and that he intended to pay for them, and, of course, he impliedly promised to pay for them. —Maxwell v. Brown Shoe Co., *296 supra.. So that it is fair to say that tbe 'seller had these implied representations of Gorton and the independent information above referred to at the time the sale was made. It does not affirmatively appear that the seller acted solely upon this independent information, and not upon the alleged fraud of Gorton. It is a matter of inference whether he acted upon the one or the other, or upon both combined. And this inference the jury alone is competent to draw. It should have been left to them to find whether the seller was induced by Gor-ton’s fraud, if they believed he had been guilty of fraud, solely or in connection with the independent information, or by such information alone to part with his goods. The affirmative charge, with hypothesis, given for plaintiff took this inquiry away from the jury. The court erred in giving it.
Reversed and remanded.