140 Ala. 440 | Ala. | 1903
The complaint contains three counts. The first declares on an open account; the second, .on a stated account; and the third for goods,- wares and merchandise sold.
A number of special pleas were filed by defendant. A demurrer was sustained to several of them, but overruled as to the eighth. This pleas, as we read it, was a plea in bar and attempted to set up as a defense a bread) of warranty of the quality of the roofing sold by plain
And 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. In other words “unless there ivas a rescission of the sale or unless the article purchased was valueless, the purchaser could not resist payment of the entire purchase money of the defective article. * " * 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 on to 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.”—Jemison v. Woodruff, 34 Ala. 143, 146. See also Pacific Guano Co. v. Mullen, 66 Ala. 582; Young v. Arntze, 86 Ala. 116. Of course, the value 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. — 15 Am. & Eng. Encyc. Law, (2d ed.), 1256 and note.
Testing the plea under consideration by these principles, it is clear that the demurrer interposed to it should have been sustained. It may be that the purchaser is not bound to rescind the contract of sale, but may retain the article purchased and prove its real value and abate the recovery pro tanto.—Frith v. Hollan, supra, and cases there cited. But this is clearly not the purpose of the plea.
Reversed and remanded.