101 So. 733 | Ala. | 1924
Count 2, the one upon which this cause was tried, stated a cause of action as for the breach of an implied warranty in the sale of a carload of coal. When the buyer orders goods to be supplied and trusts to the judgment of the seller to select the goods, which shall be applicable for the purpose for which they are intended, which is known to both parties, there is an implied warranty that they are fit for that purpose. 2 Benjamin on Sales, § 998; Troy Grocery Co. v. Potter Wrightington,
The case of McCaa v. Elam Drug Co.,
This suit is for the breach of an implied warranty in the sale of a carload of coal, and is not such an action as falls within the influence of sections 2489 and 2490 of the Code of 1907. Sullivan v. L. H. R. R.,
The trial court committed no reversible error in permitting the written assignment from Pearce to the plaintiff to be introduced in evidence. Plaintiff had just testified that he previously sold and transferred the claim to Pearce, and the transfer *27 in question was relevant evidence of a retransfer of the claim to the plaintiff. On the other hand, if the previous transfer did not get the title out of the plaintiff, and the retransfer was irrelevant, it was harmless, as the plaintiff in either event would be the legal owner. The fact that the retransfer to the plaintiff was not for a valuable consideration was of no moment to this defendant, who was not a purchaser or creditor.
The case of Coffman v. L. N. R. R.,
The case of Hicks v. Meadows,
For reasons set out under the second proposition discussed in this opinion the trial court did not err in refusing the defendants' requested charges A, B, D, and E.
There was no error in refusing the general charge requested by the defendant. Under the rule laid down in discussing the complaint, the jury was authorized to find an implied warranty in the sale of the coal by the defendant when negotiating with Anthony, who was acting for the plaintiff. Nor was the coal sold by inspection, but by bill of lading, with draft attached. The plaintiff testified that he took up the draft and bill of lading "before unloading or inspecting the coal."
The oral charge of the court substantially conformed to the law as to Holloway's rights as the legal owner. True, the word "alone" could have been omitted therefrom, but, conceding that the beneficiary could also, under the circumstances, have settled or released the claim, Holloway had the primary right to do so, and the question of a release or the conflicting rights of Holloway or Pearce to make one was not involved.
While that part of the oral charge excepted to in reference to damages is not as clear and full as it might be, we do not think that it was injuriously erroneous when compared with the complaint and plaintiff's proof, which seems to have been accepted by the jury. The complaint only claimed back what plaintiff had paid for the coal, including expenses for shipping and hauling, and that the coal was worthless for the purpose for which it was bought, and the oral charge, as excepted to, held the jury down to the difference between what was paid out and what the coal was actually worth to the plaintiff.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.