B. F. Roden Grocery Co. v. Gipson, 62 So. 388

62 So. 388 | Ala. Ct. App. | 1913

WALKER, P. J. —

The appellant assigns as error the action of the court in overruling its demurrer to the amended third plea. The plea, after averring that the plaintiff, at the time it sold to the defendant the automobile for the price of which the notes sued on were given, represented and warranted that it would climb a 30 per cent, grade and that it would climb' with its load any of the hills along the public roads of Walker county, Ala., for the defendant’s personal use along which he bought the machine, averred that said automobile would not climb a 30 per cent, grade, and would not climb many of the hills along the public roads of said Walker county, and that by reason of its failure to do so the plaintiff was prevented from using it on said public roads, in consequence whereof said automobile was of little or no value to him. The plea further averred that the defendant had paid to the plaintiff $700 on the $1,400 purchase price of said machine, and for the breach of warranty alleged claimed damages in the sum of $1,400, which it offered to set off or recoup against the demand of the plaintiff. Mention will be made of the grounds of demurrer which are sought to be supported by the argument of the counsel for the appellant : (1) The failure of the plea to aver a return or an offer by the defendant to return the automobile within a reasonable time after his discovery of the breach of the warranty did not constitute a demurrable defect in it. It is well settled that, when there is a breach of a warranty made in the sale of goods, the buyer may either rescind the sale and refuse or return the goods or accept and retain the goods and bring an action for breach of warranty, or, in an action by the vendor for the price, recoup by way of counterclaim damages for breach of the warranty. — Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 159 Ala. 491, 49 South. 92; Frith & Co. v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54. (2) The plea, was not subject to demurrer on the grounds suggesting its failure to aver facts showing that the defendant was damaged in consequence of the breach of warranty alleged. That the defendant sustained damage as the result of such breach is plainly shown by the averments as to his incurring obligations for and making payment on the machine, and in consequence of its failure in the respects mentioned, being prevented from making the use of it which the terms of the warranty itself indicate was in the contemplation of both parties to the contract of sale at the time it was entered into. (3) It is suggested in the argument that the plea was subject to demurrer because the counterclaim was made in the alternative, the offer made by the plea being “to set off or recoup,” etc. No such objection was raised by the demurrer. Besides, it is entirely immaterial by what name the counterclaim is designated by the pleader. — Lawton et al. v. Ricketts, 104 Ala. 430, 16 South. 59. We find no error in the action of the court in overruling the demurrer to tlie plea referred to.

Questions calculated to elicit and Avhich in fact elicited only testimony as to the failure of the automobile under appropriate tests to come up to the requirements of the Avarranty pleaded were not subject to the objections made to them, and the court was not in error in overruling such objections.

After the defendant as -a Avitness in his oaaui behalf had testified on direct examination, on cross-examination, on redirect examination, and on a recross-examination at some length, and after he had ansAvered questions propounded by the plaintiff’s counsel as to the terms on which lie liad offered to sell the automobile in question, he was asked by the plaintiff’s counsel, “What will you take for the car to-day?” An exception was reserved to the action of the court in sustaining Lhe defendant’s objection to this question. Conceding that the question was one which without error might have been permitted to be asked on cross-examination for the purpose of testing the honesty or sincerity of the witness, though his statement of the price at which he would be willing to sell the automobile might have no tendency to prove its market value, and so would not furnish any legal criterion for measuring damages under the plea of recoupment (Tennessee Coal, Iron & R. Co. v. State, 141 Ala. 103, 37 South. 433; Steiner Bros. v. Tranum, 98 Ala. 315, 13 South. 365), yet the action of the court in not permitting the question to be answered may be sustained as an exercise of its discretion in controlling the order of the introduction of evidence and limiting cross-examination. It is not made to appear that there was an abuse of this discretion.' — Birmingham Railway, Light & Power Co. v. Martin, 148 Ala. 8, 42 South. 618; Tobias & Co. v. Triest & Co., 103 Ala. 664, 15 South. 914; St. Louis & S. F. R. Co. v. Phillips, 165 Ala. 504, 51 South. 638; 38 Cyc. 1356, 1363; Jones on Evidence, §§ 811, 826.

The appellant cannot complain of the overruling of bis objection to the question referred to in the fifth assignment of error, as the answer made to the question could not possibly be regarded as unfavorable to him.

It is for the jury, not for a 'witness, to say what conclusions are to be drawn from the evidence in the case. The questions referred to in the sixth and seventh assignments of error were subject to the objections made to them, as they called, not for statements of fact proper to be deposed to, but for deductions or conclusions of the witness from the evidence adduced. Responsive answers to tliose questions would have been invasive of the exclusive province of the jury.- Union Painless Dentists v. Dement, 6 Ala. App. 505, 60 South. 421; Louisville & Nashville R. Co. v. Landers, 135 Ala. 504, 33 South. 482.

Whether or not any complaint had been made of another car sold by the plaintiff to a stranger to this suit was an inquiry having no possible relevancy or pertinency to any issue in this case, and evidence in reference to that matter was properly excluded.

There was evidence tending to support the plea setting up a breach of warranty, and to justify a conclusion that the damages sustained by the defendant as a result of the breach amounted to as much as the unpaid balance on the notes sued on. We find no merit in the complaints made against the refusal of the court to give the general affirmative charge requested by the plaintiff, and to grant its motion for a new trial.

Affirmed.