80 So. 734 | Ala. Ct. App. | 1918
On the trial of the case in the court below, the appellee recovered $10 damages, and appellant's contention is that the action is in tort, and, under the provisions of section 3663 of the Code, he is entitled to recover no more costs than damages. The case was submitted to the jury on the second count of the complaint, the other count being eliminated by amendment, and if this count states a cause of action in tort, the appellant's contention is correct and must be granted. Danforth v. McClellan,
"The successful party in all civil actions is entitled to full costs, for which judgment must be rendered, unless in cases otherwise directed by law, or by the judgment of the court," etc.
The provisions of the quoted section have no application to cases falling within the provisions of section 3663.
It is not clear from count 2 whether the action is ex delicto or ex contractu, and while demurrers were filed by the appellant in the court below questioning the sufficiency of the averments of this count as stating and defining a cause of action, on this appeal it has waived any benefit arising therefrom by failing to assign errors on the ruling of the court on the demurrers. Otherwise stated, *640
the appellant cannot waive his demurrers, and at the same time claim the benefit of having interposed them. Therefore, in disposing of the question as to whether the court was invested with a discretion in taxing costs, the complaint will be accorded a liberal construction in order to sustain the judgment. Stewart v. Goode et al.,
It is a well-settled rule of law that where a manufacturer sells articles of his own make in the absence of an express warranty, a warranty by implication of law arises that such articles are reasonably fit for the purposes for which they were intended. Snow v. Schomacker Mfg. Co.,
This warranty is not for the benefit of the retailer who purchases in large quantities for resale, and such retailer is not liable to the consumer of articles of the character here involved, if he purchases of a reputable manufacturer or dealer, and the goods so purchased and supplied by him are such as are without imperfections that may be discovered by the exercise of the reasonable care of a person skilled and experienced in dealing in and supplying goods to the general public. Biglow v. Maine Central R. R. Co.,
The second count of the complaint clearly states facts from which the law would imply a warranty as between the defendant and the plaintiff that the contents of the bottle of Chero-Cola were fit for human consumption, and that the defendant had used, in the selection and preparation of this drink, that degree of care ordinarily exercised by persons skilled in the business of preparing such drinks for distribution and sale to the public, and further states facts showing a breach of such warranty. We therefore hold that the complaint, when liberally construed to support the judgment, states a cause of action ex contractu, and is in assumpsit for a breach of implied warranty, and under the provisions of section 3662 of the Code as amended, the court was invested with a discretion in the taxation of costs according to the equities of the case.
Affirmed.