69 Ala. 96 | Ala. | 1881
It is not shown in this record that Andrews & Co., the sellers of the guano, were themselves its manufacturers. Hence there was no implied warranty that the article sold was reasonably well adapted to the purposes for which it was purchased. Like any other sale of merchandise, the law exacted from the contractors only good faith and fair dealings Neither do we think there was any evidence given or offered, tending to prove a warranty. The most that can be made of’ it is an expression of opinion that it was a good fertilizer. This does not amount to a warranty.— Wilcox v. Henderson, 64 Ala. 535.
There is a point, however, on which we feel it our duty to reverse several rulings of the Circuit Court. One of the pleas of defendant is in the following language: “ That the note sued on was given by the defendant for guano, which said guano was wholly worthless and of no value, and the said note has no other consideration than the said worthless guano sold by the plaintiff to the defendant.” This plea was not demurred to, but the record informs us, issue was joined upon it. Now, although the plea was insufficient, yet when issue was joined upon it, it became one of the issues to be tried by the jury, and the defendant should have been allowed to introduce testimony in support of it. The plea consisted of two averments, and so long as it remained as the basis of one of the issues, although' immaterial, the court had no discretion, but should have received the evidence offered in ’support of each of the averments of the plea, namely: that guano was the consideration of the note, and that the guano was worthless.— Mudge v. Treat, 57 Ala. 1. Several rulings of the Circuit Court are opposed to these views.
Beversed and 'remanded.