98 So. 24 | Ala. | 1923
Appellee recovered a judgment against the appellant for the purchase price of certain paint.
Count 4 rested upon a special contract in writing, but was evidently abandoned upon the trial, and will be here laid out of view. The other counts were the common counts for goods sold and delivered upon account and account stated.
Among the special pleas interposed by the defendant was plea 3, alleging an express warranty by the defendant that the paint would be good, hold its color, and stand the weather, and that if it was not as guaranteed that it should cost the defendant nothing. This plea further alleged a breach of this warranty in that the paint washed off and did not stand the weather.
Demurrer to this plea was sustained evidently upon the theory that it was interposed as a bar to a recovery of the entire purchase price, and contained no averment showing that the goods had been returned or tendered. The rule is recognized in this state that —
"When a breach of warranty is relied upon, the plea must aver a return of the property or an offer to do so within a reasonable time after a discovery of the fraud, unless it was valueless. The mere breach of warranty would not prevent the title to the property from vesting in the purchaser by virtue of the contract of purchase. * * * To entitle the purchaser to avoid the payment of the purchase money entirely upon the ground of fraud or breach of warranty, where he holds onto the property, it is not sufficient that it is valueless for the particular purpose for which it was bought; it must be intrinsically of no value. * * * Of course, the rule of restoration or offer to do so has no application where the use of the property in testing its qualities destroys it or renders it impossible to return it to the seller." Eastern Granite Roofing Co. v. Chapman Co.,
The plea fails to show that the paint had been so used that no offer to return could be made. It does allege, however, an express and special agreement as to the warranty of these particular goods, that if the paint was not as guaranteed it should cost the defendant nothing. Under such a special contract we are of the opinion any duty to return or offer to return was waived, and that the plea discloses a good defense. Illustrations of specific contract agreements concerning warranties bearing some analogy to that here in question may be found cited in the note to 35 Cyc. 437-440. Demurrer to plea 3 was improperly sustained.
Plea D set up a special warranty, and the breach thereof, averring the damage consequent upon such breach and offer to recoup or set off such amount against the plaintiff and judgment for the excess. This was a proper plea of recoupment, and no offer to return was necessary. Eastern Granite Co. v. Chapman, supra. We are of the opinion this plea was not subject to any ground of demurrer interposed thereto.
What we have here said will suffice as to the rulings upon pleadings without further consideration of the special pleas.
Upon the question of evidence, we are of the opinion that the letter written by the defendant to the plaintiff some months after the purchase of this paint was admissible, and no error was committed in this respect. One McFerrin, a witness for the defendant, qualified as an expert tinner and roof painter, and had used some of the particular paint involved in this controversy. The question propounded by the defendant to this witness clearly indicates the purpose to have him testify that the paint was in his opinion of no value. While it is true he had not qualified as an expert or shown a knowledge of the value of various paints, yet we think his experience as a roof painter sufficiently qualified him to testify that in his opinion this paint was of no value whatever, and the objection to the question should have been overruled. The evidence was pertinent to some of the special defenses interposed. *343
For the errors indicated, let the judgment be reversed, and the cause remanded. Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.