62 So. 289 | Ala. Ct. App. | 1913
To the complaint in this case counting upon an alleged breach of a warranty of soundness in a sale by the defendant to the plaintiff of a horse, a special plea was interposed which alleged:
Several of the grounds assigned in the demurrer plainly are not tenable. It may be inferred that the action of the court was based upon the grounds of the demurrer which suggested the failure of the plea to show the continued willingness and readiness of the defendant to deliver to the plaintiff another horse in place of the one sold to him; or, in other words, that the court applied to a plea averring the tender of a horse the same rules as are applicable to a plea averring a tender of money. In doing so an error was com
At any rate, under the authorities, a plea which avers the existence of such a contract as was disclosed by the plea in the instant case and sets up the making of the tender pursuant to the terms of such contract is to be regarded as showing a discharge of the contract sued on, and is not subject to demurrer because of its failure to show that the defendant has continued to be ready and willing to deliver the subject of the tender. Nor was that plea subject to demurrer on either of the other grounds assigned. It shows that the defendant duly tendered to the plaintiff such another horse as the latter had agreed to accept in satisfaction of any claim that he might have because of the one which he had bought not coming up to the requirements of the warranty of it. The conclusion follows that the court was in error in its rulings on the demurrer to the plea above set out.
Reversed and remanded.