46 So. 229 | Ala. | 1908
The action is for the breach of the following contract: “Birmingham, Alabama, Nov. 6, 1906. Received of John Thompson $35, in full payment of 819 Electric Peninsular range. If same does not bake and cook well and give satisfaction, we will refund money and pay freight. John W. O’Neil & Co., John W. O’Neil, Pt.” The breach alleged in the complaint is that the range did not give satisfaction. The demurrer to the complaint contains these grounds only: “(1) For that the alleged contract set out in said complaint is that The said range shall bake and cook well and give satisfaction,’ and the breach alleged in the said complaint is that the said range did not give satis
It is manifest that the conditions to refunding of the money and the payment of the freight were three in number, and that a failure of the range to cook well, to bake well, or to give satisfaction, any one of them, entitles Thompson to the refunding. The very letter of the contract demonstrates this, and there is nothing to indicate a contrary intention in the premises. It results that the complaint for the breach of the agreement might be rested, as was done, by a counting for a failure of the range to meet any one of the conditions written in the paper by the parties. Hence it is clear that the demurrer was improperly sustained, since it proceeds upon the theory that the contract in suit could only be breached by a failure of the range in all the respects to which the parties agreed as conditions to the refunding, etc. The questions whether the term “satisfaction” should be construed as reposing the right in the purchaser to capriciously declare his dissatisfaction, or whether he could only be dissatisfied upon reasonable ground or for good cause, are not raised by the demurrer, and are, hence, not presented for review.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
