73 So. 413 | Ala. | 1916
“In order to constitute a warranty, no particular form of words is necessary — the word ‘warrant’ need not be used. A bare representation or assertion as to the quality of the property, if so intended and understood by the parties, will amount to a warranty.”—Barnett v. Stanton, 2 Ala. 181.
(1) Plaintiff’s testimony tended to show that he traded his horse for defendant’s mule upon defendant’s assurance that “it was a good old mule, not as good as a young mule, but was peart enough for what I wanted it for” — i. e., for a wagon mule and plow mule; and further that it was “a peart old mule, and a good work mule.” Whether this was, under the circumstances, intended and accepted as a warranty of the qualities of the mule, and, if so, whether the warranty was breached, thus authorizing a rescission of the trade and the recovery of his horse by plaintiff, were questions of fact for the jury.
(2) It is well settled in this state that the breach of a warranty in the sale of chattels,’ whether it amounts to a misrepresentation and deceit or not, is ground for rescission by the purchaser.—Barnett v. Stanton, 2 Ala. 181; Eagan Co. v. Johnson, 82 Ala. 233, 2 South. 302; Thompson v. Harvey, 86 Ala. 521, 5 South. 825; Frith v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54; Baer v. Mobile, etc., Co., 159 Ala. 491, 49 South. 92; McCoy v. Prince, 11 Ala. App. 388, 66 South. 950.
The instructions given to the jury at the instance of defendant ignore and exclude from consideration the right of plaintiff to rescind the trade on account of the breach of warranty alone, and were therefore erroneous. So, plaintiff having promptly and efficiently rescinded the trade, the requested instruction that “if Quillin warranted the mule to be a peart and serviceable mule, when in fact it was not, the plaintiff is entitled to recover in this action,” was a correct statement of the law as applicable to the evidence, and should have been given.
There was no error prejudicial to plaintiff in the rulings on the evidence.
Reversed and remanded.
