Thе contract of sale made over the telephone and the subjеct-matter thereof were within Madison county. The delivery and payment wеre consummated at Gurley. The evidence of plaintiff tended to show the warranty as alleged in the complaint; that for defendant to the contrary: That the hogs were purchased by plaintiff after he had inspected 'them.
In the absence of evidence that the defendant knew when the sаle was made or consummated that the hogs were purchased for shipment and resale on the Louisville market, the evidence of the market value thereof would be confined to that of the time and placе of delivery, if they had a market value at such place. J. H. Burton & Sons Co. v. May (Ala. Sup.)
The controverted question of fact is whether there was evidence in support of the third count of the complaint, seeking to makе a case within the recognized exception to the general rule to which we have averted. Bell v. Reynolds,
Certain оf the testimony of Montgomery, Oldham, and other witnesses related to the differеnce in price of “hard” and “soft" hogs in the Louisville market; that is, the difference in the market price of hogs that had been “corn fattened” and hogs that had not been so fattened.
Plaintiff’s witness Baker testified of market value оf hogs in Madison county and of the specific terms of his contract of purchase, the receipt, delivery, and reshipment, payment therefor by check bearing evidence of the terms of purchase — “Carload corn fat hogs guaranteed.” He further testified that when he gave defendant the check at Gurley, when he was there “weighing up the hogs,” he “told the defеndant that” he “was shipping them to Louisville”; that “Mr. Mc-Kelvey had just gotten the markеt from Louisville” ; that he and his partner (McKelvey) discussed the fact of the twо or three cents difference in favor of “corn fed hogs”; that after witnеss’ conversation with his partner he came “back to the defendant and told him what McKelvey had'told” him “over the phone”; and witness stated that he had replied to his partner that he would not hold back a part of the purchase price as a guaranty — that he “knew who” he “was dealing with,” onе who “was worth the money,” who could make good the guaranty. Witness denied that defendant replied to him: “If you are dissatisfied with your trade, put them back in the pen.” The witness again stated on re-examination:
“After I had had my convеrsation with Mc-Kelvey, and had come back to where the defendant was, I told him that McKelvey had just received the market and advised me to hold back as much as three cents a pound on the hogs in case, they were soft, and that I had told him I knew who I was dealing with; that he was worth the money, and that I wоuld state in the check that it was ‘for corn fat hogs.’ ”
The evidence showеd that defendant saw plaintiff load the hogs on cars at Gurley, and knew they wеre being weighed for shipment to Louisville.
There was no error in admitting in evidenсe the fact that there was $2 difference in the market value between “hard” and “soft” hogs at the several points covered by the witness (at Louisville or in Madison county), and as applied to notice or knowledge of special use. 52 L. R. A. 209, 217, 218.
We find no reversible error.
Affirmed.
Notes
Ante, p. 435.