42 So. 819 | Ala. | 1906
This is the second appeal in this cause. See 142 Ala. 514, 39 South. 213. On tlie first trial the complaint contained three counts, and a demurrer was sustained for a misjoinder of counts. Judgment was rendered for the defendant on the first trial, from which the plaintiff appealed, and here assigned as one ground of error the rul" ing of the court sustaining the demurrer to the complaint for misjoinder. In response to this assignment of error, we said: “This first count, which claimed damages for deceit in the sale of a car load of oats, was in case, while the third count, both as orignally filed and -as amended, counted on a breach of contract in the sale. This constituted a misjoinder of causes of action that made the complaint subject to the demurrer interposed.” That was sufficient for the occasion, and. the purposes of the court at the time.. The nature of the second count in the complaint was not discussed or determined, the exigencies of the case did not require that it should be determined, and the court could not anticipate a return of the case, presenting the question now before us. On the trial of the cause, after the reversal and remandme-nt, the court allowed the defendant to plead over, and he demurred to the complaint on the ground of misjoinder
As has been shoAvn, the first count claims damages for deceit in the sale of a car load of oats; Avhile the second counts for recovery on a breach of warranty in the sale. A warranty is nothing more nor less than a contract, and may arise by implication or exist by express agreement. The second avers no breach of- duty imposed by the contract of Avarranty, nor is any deceit averred in promising that the oats Avere sound. It is obvious that breach of the contract of warranty, and not fiaud or deceit, is the gravamen of the second count. Consequently the count is ex contractu, and the court erred in overruling the demurrer. — Romano v. Brooks, 142 Ala. 514, 39 South. 213; Whilden v. Merchants’ & Planters’ Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1; Chambers v. Seay, 87 Ala. 558, 6 South. 341; Capital City Waterworks Co. v. City Council of Montgomery, 92 Ala. 366, 9 South. 343; Western Union Tel. Co. v. Krichbaun, 132 Ala. 535, 31 South. 607; Benningsgage v. Ralphson, 2 Show. 250, pl. 256. The case of Prout v. Webb, 87 Ala. 593, 6 South. 190, cited by appellant’s counsel, in no Avise conflicts with what Ave have said. Tavo cases from New York have been cited by appellee. It is shown in the case of Evertson’s Ex’rs v. Milas, 6 Johus. (N. Y.) 138, the two counts in the case of Hallock v. Powell, 2 Caines (N. Y.) 216, the first of the NeAv York cases cited, Avere for deceit, “the one in warranting a distempered horse to be sound, and the other for a, like deceit in promising that he was sound.” And the court in 6 Johns. 138, said: “The gist of the action, then, Avas the deceit, and not the contract.” And this, of course, warranted the holding there that there was no misjoinder. See, in further criticism of the case, Lovett v. Pell, 22 Wend. (N. Y.) 370 The case of Evertson’s Ex’rs v. Miles, supra, may be relied on as authority in support of, rather than against, the conclusion we have reached.
No other suit than the one here being prosecuted has been instituted by the plaintiff, so it seems clear that the only remedy chosen by the plaintiff is the one involved in this action. “Although acts prior to the actual commencement of legal proceedings indicate an intention to lely upon one remedial right, yet they do not constitute an election which will preclude the subsequent prosecu
It is not necessary to the trial of the cause on remandment. that we should consider the rightfulness or not of the judgment of the couit on the facts. For the error pointed out, the judgment of the court must be reversed, and the cause remanded.
Reversed and remanded.