Millsapp v. Woolf

56 So. 22 | Ala. Ct. App. | 1911

de GRAFFENRIED, J.

A warranty, in the sale of a chattel, is a collateral undertaking on the part of the seller as to the quality of or title to the subject of the sale. It may be express or implied. It is express when made so by the agreement of the parties; implied when the law derives it by implication from the nature of the transaction or the relative situation of the parties.— 30 Am. & Eng. Ency. Law, pp. 128, 129.

As a warranty, express or implied, is a contract, the good faith of the seller in making it is not material. In actions for breach of warranty, the only questions are: Was there a contract of warranty? If so, has there been a breach? And if so, the amount of damages suffered by the purchaser thereby.—Scott v. Holland, 132 Ala. 389, 31 South. 514.

It is not necessary, as a condition precedent to a right of action for the breach of a warranty, that the article shall be returned to the seller and the seller be put in statu quo, unless the contract, by its terms, requires the return of the article if it should prove not to be as warranted. Unless the contract requires the return of the article, or some other express condition, by the terms of the contract, is attached to it, the purchaser may retain it and sue for his damages for the breach of the warranty and the measure of his damages is ordinarily, in such case, the difference between the value of the article as it was warranted to be and its actual value.

The purchaser may, however, upon a discovery of a breach of the warranty, repudiate the contract of sale and sue for his damages, which is, ordinarily, the purchase price paid for the article and interest thereon from the date of purchase.

To effect a rescission for a breach of warranty, the purchaser must, within a reasonable time after the discovery of the breach, return the property to the seller unless he has a good excuse for not doing so and, ordinarily, what is a reasonable time in any particular case is a question for tlie jury.—30 Am. & Eng. Ency. Law, pp. 200, 201.

There is a clear distinction between an action for a breach of warranty and one for deceit in the sale of a chattel; in the first case the action is ex contractu and in the second, ex delicto.—30 Am. & Eng. Ency. Law, p. 129; Scott v. Holland, supra. If the action is for deceit in the sale of a chattel, mere proof of the breach of a warranty is not sufficient.—Scott v. Holland, supra.

Where the purchaser relies upon deceit in the sale of a chattel as his right of action, he must show that he returned the article purchased within a reasonable time after the discovery of the deceit, or a sufficient legal excxxse for his failure so to do, as a condition precedent to the suit. He cannot hold the fruits of the contract with one hand and repudiate the contract with the other. “A party who seeks the rescission of a contract oxx the ground of fraud must act with vigilance axxd promptness on the discovery of it by an offer to return the property within a reasonable time, if the parties live at a distance froxn each other; or by an actual redelivery of it, or a tender with a view to redelivery, if they reside near each other, and the property is susceptible of easy traixsportation.”—Dill v. Camp, 22 Ala. 249.

“A contract, obtained by xnisi'epresentation, may be avoided, or an action for daxnages sustained, though the asserting party xnay not know the statement is false. It is as xxixxch a fraud at law to affirm as true what is untrue, though not known to be so, as to assert what is known to be untrue.”—Jordan & Sons v. Pickett, 78 Ala. 331; Code 1907, § 4298.

The' various pleas setting up a contract of warranty and its breach, and the pleas setting up deceit in the sale, contain all of the essential averments required of complaints in such actions by the Code, and the other pleas to the complaint are in literal compliance therewith. The pleadings, therefore, substantially complied with the requirements of the Code, and, reading them in the light of the principles of law above announced, we ar,e of the opinion that the court committed no error in overruling' defendant’s demurrers to them. Some of the questions which the defendant undertook to raise by the evidence, and, under the evidence, were issues for the jury under the charge of the court.

No exception was reserved to the charge of the court by the defendant. Presumptively the court correctly charged the jury with reference to them and the jury, under the evidence, decided the issues adversely to appellant.

4. There is no merit in assignments of error Nos. 11, 12, 13, 14, 15, and 16. The eleventh assignment of error is predicated upon the exclusion by the court of a question put to a witness and answered by the witness before the objection to the question was made. The court sustained the objection to the question, but did not exclude the answer of the witness to the question. The question excluded was a question to a witness; his answer, was evidence for the jury. The answer remained as evidence before the jury, and if there was error it was harmless.

The twelfth, thirteenth, fourteenth, fifteenth, and sixteenth assignments of error call in question the legality of the action of the court in refusing to allow Reuben Millsapp, who, as the agent of the plaintiff, is alleged to have conducted the negotiations which resulted in the sale of the horse, to- testify that, after the death of the hor,se, the defendant did not, in certain conversations had with the witness, claim that he, on behalf of plaintiff, had warranted the horse to be sound or had falsely represented him to be sound. This testimony was not offered to contradict any statement made by the defendant while he was on the witness stand as a witness. It would have, if allowed, thrown no light on the questions involved in the case, and was properly excluded.

5. Section 3960 of the Code provides that “one need not be an expert or dealer in the article, but may testify as to its value if he had an opportunity for forming a correct opinion.” O. M. Wolfe bought the horse from the plaintiff and had possession of him from that time until he died. The court therefore committed no error in permitting him to testify as to its value.

6. The answer of the witness to the question made the basis of assignment of error No. 23 was certainly of no injury to appellant.

There is no error in the record, and the judgment of the court below is affirmed.

Affirmed.