55 So. 109 | Ala. | 1911
The first assignment of error relates to the action of the court in sustaining a demurrer to defendant’s fourth plea. This plea is an attempt to set up, as a set-off to plaintiff’s claim, damages because of the unsoundness of a mule sold to defendant by plaintiff, without averring any warranty of soundness, or of fraud practiced in the sale. The plea avers the unsoundness at the time of the trade, and then avers: “Which fact was either known to plaintiff, or could have been known with the exercise of ordinary care.” Such an averment falls far short of alleging a warranty, and its breach, or alleging fraudulent misrepresentations, in the sale. Apart from consideration of any other defects the plea may have possessed, it ivas bad in the respect noticed, and subject to the demurrer.
For the error in overruling the demurrer to the first replication, the judgment is reversed.
Reversed and remanded.