65 So. 813 | Ala. | 1914
This action, instituted by appellee against appellant, is for breach of a contract entered into between Carden as seller and Johnson as buyer, in that Johnson failed to accept the subject-matter of the dealing—viz., machinery—and also failed to ship to Carden 3,000 cement blocks, which was the agreed purchase or exchange consideration for said machinery. The pleas, in short, by consent were: “General issue, breach of warranty, and rescission.”
The machinery was, when the parties engaged, located at Oakman, Ala., had been used in plaintiff’s sawmill enterprise, and was, to generally describe it, a sawmill outfit, of which a boiler and engine were parts. The buyer (Johnson) was a dealer in second-hand machinery of the general character of that in question. The plaintiff’s engagement was to deliver the machinery f. o. b.
While there was evidence to the effect that the machinery was in good condition when loaded on the cars at Oakman—except an inconsequential dent made by the falling of the boiler during the process of loading -—yet there was also evidence tending to show that from long use the machinery was practically worthless. So, too, the question of the true condition of the machinery when it was loaded at Oakman—aside from the dent mentioned—was for the jury. On the issues indicated the evidence and reasonable inferences from evidence were in such state that the conclusion of the jury, whichever its view, resolving them could not he criticized, much less condemned. Hence the trial court cannot he said to have erred in declining to disturb the verdict on the ground that it was, on the issues stated, manifestly wrong and unjust.—Cobb v. Malone, 92 Ala. 630, 9 South. 738. Of course, if the jury did find that there was no express warranty of the machinery’s serviceableness, and that the machinery was secondhand—there
Promptly upon the arrival of the car of machinery at destination Johnson inspected it, and, as he and others affirm, found the boiler in a greatly damaged really unusable condition, and refused to accept it. He so advised Carden, Avho came to see the machinery. Johnson refused to receive it at all. Carden testified that the machinery—“was not in worse condition than when he [Johnson] saAV it at Oakman, except that there was a bent-in place in the smoke box, which could have been
Carden then undertook, but failed, to sell it to dealers in that city. Johnson contended, in accordance with other evidence admitted to that end, that Carden rescinded the contract, and on this theory requested these special instructions to the jury, which the court refused :
“(1) I charge you, gentlemen of the jury, that if you believe from the evidence that the plaintiff resumed control of the car of machinery and offered to sell the same as his property, then the original contract between the plaintiff and the defendant was rescinded, and you cannot find for the plaintiff.”
“(6) I charge you, gentlemen of the jury, that if you believe from the evidence that after the plaintiff knew of the rejection of the machinery by the defendant, the plaintiff treated the machinery as his own and offered to sell it as his own to other parties, then the original contract was rescinded, and you cannot find for the plaintiff.”
The refusal of the first-quoted request for instruction was justifiable on the ground that it was abstract in respect of a material feature of its hypothesis, viz., the resumption of control of the car of machinery by the plaintiff, of which there was no evidence.
Our opinion is that the court erred in refusing the second quoted request for instruction.
For the error indicated, the judgment is reversed, and the cause is remanded..