*1 283 contributorily your negligent, then found no in assignments merit of the plaintiff. substantially brief, must be for of error argued verdict judgments of the lower court in Case No. “Refused, Carter, Judge” 11251 and be, Case No. 12572 are due are, affirmed. Appellant’s requested Charge No. plainly palpably wrong. 12 is Affirmed. quantum proof in required party
voking contributory negligence issue LAWSON, MERRILL and HAR- in a civil is to the case reasonable satisfac WOOD, “beyond JJ., jury, tion of the concur. reasonable Fidelity doubt.” United States Guar anty Charles, 658, 662, Co. v. 131 Ala. 31 558; Reynolds, Ala.App. Hurn v.
79, 82,
603;
Mullin, 251
v.
So.2d
Jones
501, 505,
Charge
Ala.
No.
12 was assignment
there is no merit in
of error
8.No.
So.2d
Appellant’s
assignment
final
of error No.
COMPANY, Inc.,
TIGER MOTOR
9, argued
brief, asserts,
substance,
er-
Corporation
part
ror on the
trial court
in refus-
ing
grant appellant’s
new
motion
E.
Thomas McMURTRY.
jury
trial on
that the
verdict
favor of David
This
Vann
excessive.
558:
“There standard for is no fixed ascer- compensatory
tainment damages re- physical
coverable pain here for
mental suffering, but amount
award is left sound discretion of jury, subject to correction passionate court for abuse clear Gay,
exercise of that discretion. Vest v. So.2d 297.”
Appellant fails to show either a clear part
abuse of discretion jury reaching verdict that the verdict product passion.
was the ab- In the
sence of such showing, say we cannot the verdict rendered was excessive.
There being nothing left for this Court consider, and inasmuch as we have
Walker, Gullage, Hill & Opelika, ap- for pellee. McMillan, Opelika
Brown and Au- &
burn, appellant.
$4,830.16, for use of the station days. In its final decree court below found warranty, express implied, Garrett, Stakely, & Rushton, Johnston McMurtry money judgment awarded curiae. Montgomery, amicus $2,923.95 in the amount of as reimburse- portion ment purchase price paid which he had time BLOODWORTH, Justice. below; trial in the court decreed that McMurtry (appellee-com- E. Thomas wagon, upon station the rescission of complaint in the bill of filed plainant) sale, property is the *4 equity, County, in Lee of court circuit Company, subject Motor the chattel to (appellant- Company Tiger Motor against mortgage assigned or contract which was Com- Motor Credit and Ford respondent), Company; to Ford Motor Credit or- to rescind seeking pany (respondent) Tiger dered Company Motor to remove Wagon which Ford a Station of 1967 sale wagon premises station from the Tiger Motor McMurtry purchased complainant; Compa- Tiger Motor ordered 5¡ ex- 1967, breach of April Company ny pay mortgage off and the note Tiger by warranty made implied' press or satisfy obligation full; in re- denied Company. Motor spondent Tiger Company recov- Motor ery cross-bill; on all taxed costs portion of as a alleges that bill against Tiger Company. Motor McMurtry executed price purchase agreed Tiger from this decree that Motor is Company his Tiger Motor delivered to Company appeals. assign- 22 There are April $3,260.16, dated note for promissory Only assignments ments 17 are of error. monthly 1967, installments payable 36 5, argued. treat We will them in order note, Mc- To secure each. of $90.56 they appear which brief. mortgage a chattel Murtry executed Motor payable to station Adequate Remedy Lawat mortgage were Company. Both note Company Ford assigned by Tiger and 3 are to Assignments of error 2 alleges Company. The bill Motor Credit the trial court erred effect McMurtry to complainant in order overruling bill demurrers to the amended relief, i.e., cancella- full have complaint of raise the which mortgage, refund note and tion of the McMurtry full, complete had a and ade- necessary to price, it is purchase remedy quate at law. Company a the Ford Motor Credit make party to the suit. Company us cites several purchaser a a suggest
cases
answer, Tiger
Company ad-
an
In its
chattel is not entitled maintain
action
mortgage were
equity
mitted that
the note
contract for
rescind the
Company
warranty
adequate
Credit
transferred
Ford Motor
an
because he has
who,
assign-
answer, admitted the
may
in its
at
the seller to
law—he
sue
Company
may
made
Tiger Motor
wait for
damages,
ment to it.
rescind
or he
or
asking
price
the court
its answer a cross-bill
the seller to
sue him for
McMurtry for
may
decree that it
not liable
defend on
in which case he
warranty, express
Thompson
or im-
warranty.
breach of
of breach 825;
plied; and,
Egan
deter-
Harvey,
court should
86
5
v.
Ala.
So.
Johnson,
breach of
guilty
mine that it has been
82
2 So.
v.
Ala.
against
302;
Hollan,
warranty,
court
set
will
off
Frith
refund,
McMurtry’s
Am.St.Rep.
sum
claim for
wagon,
reading of
cases discloses
A
those
tion
and wait to be sued
Ford
there
their
Motor Credit
factual situations
none of
because under the
mortgage
language
trans-
promissory note and
of the contract
a
he would have no
party
party,
third
defense
warranty.
ferred to a
for breach of
purchase and sale.
original
contract
Thus, although we conclude the trial
opinion that the cases cited
We are
correctly
court
overruled the demurrers in
inapposite.
are
question,
agree
gave
we cannot
that it
correct reasons
very
for its
decision.
equity
alone
said
We
well
thorough
written and
over-
decree
sur
of contracts and
enforce recission
ruling demurrers,
trial
court relied on
render and cancellation
instruments.
equity
number
cases which hold that
Donovan,
Nicolopoolos v.
jurisdiction
to rescind transactions in-
equity
hold that
So. 543.
decisions do
Our
duced
fraud.
In the instant case there
jurisdiction
cancel
cannot be
invoked
allegations
were neither
nor
evidence
es-
complainant’s
rescind a
rem
contract when
Nevertheless,
tablish fraud.
a correct de-
edy
law,
de
way
either
of action
will
cision
not be disturbed
because
fense,
complete.
plain, adequate and
gave
wrong
or insufficient reason
National Life &
Ins.
Accident
Co.
Casualty
therefor. Gulf American Fire &
*5
437,
Propst,
122
219 Ala.
So. 656. Howev
Gowan,
480,
v.
Ins. Co.
283 Ala.
218 So.2d
er,
equally
propo
we are
committed to the
688;
County Cunningham,
Cherokee
v.
260
sition
if the
at law is difficult
1,
Ala.
which contained the Company was entitled to a trial jury, the absence of a demand it cannot therefore “Buyer [McMurtry] understands complain now deprived that it has of been agrees Buyer will settle with request it which did not demand nor claims, Original setoffs, Seller all coun- 7, 322, below. Title Code of § terclaims, may and other there defenses Alabama, 1940. find We merit no the Original Seller and that contention that the action of the trial court claim, Buyer any up shall not set such overruling Tiger Company’s de set-off, counterclaim other defense murrers to the deprived amended bill it of against any subsequent holder.” jury a trial. In an action law he could neither Seeking Money Judgment joined Ford Motor Credit nor sought relief cancel the note assignments (complaining 4-6 of damages mortgage sought nor recoverable overruling demurrers) of contends here. money give judgment at law would
Likewise, McMurtry it appear McMurtry to, all the relief he is estitled stopping payment could risk assuming proves on sta- cited case. We are 7A, 302, (Recompiled 1958). § Code of Alabama 3— ty of National Bank v. to Merchants’ Mobile made or Ford Motor Company 639, 591, Roche, (assuming Tiger any and Lee warranty 227 Ala. made which 330, Gaines, v. 244 Ala. 15 So.2d denies). n support proposition that of courts a. Disclaimer equity jurisdiction will not assume where sought recovery only relief contends money judgment. provisions 7A, of Title Code § 2— (Recompiled 1958), permits Alabama be a correct While modify warranty any seller to exclude or law, principle statement a read merchantability express of fitness or of ing complaint that it the bill of discloses language, application to the instant money judgment,' seeks but oth following language in view case e., equitable (i. er relief rescission of contained in Owner’s Manual sale, contract of cancellation of the note Trucks, Ford Cars and Light viz: mortgage and refund of expressly herein “The warranties are price). equity grant full A court of will any express LIEU OF or im- IN other jurisdiction any equi it has relief when including implied plied warranty, grant table relief. Owens WARRANTY MERCHANTABILI- Owens, 396; 201 So.2d Cole FITNESS, obli- TY or other Estes, 391; man v. 281 Ala. 201 So.2d gation part Company or on the Rice, Winslett So.2d 94. Selling Dealer.” Consequently, assign we find merit in no ments error 5 and 6. 7A, provisions 2— of Title Under 316, supra, language of “disclaimer” such a *6 Rendering Judgment Money designed permit and a is intended seller warranties, properly limit his ex- gist assignments 12, The 13 and 15 is he make in clude those does nót wish to rendering that the trial court erred applicable accordance with the law. This money judgment approved by type of exclusion has been directing it to pay off other Motor Car courts. Cox McMurtry’s obligations to Ford Motor (Ky.) Castle S.W.2d Company. argued if the Credit is that money appropriate judgment, relief awas But, that the evidence tends to show then on the cause should have been heard was not delivered to Owner’s Manual side, the law and should have been submit- day McMurtry until the the automo- after But, granted a jury. ted to relief There bile was delivered. no evidence is trial than a court included more mere McMurtry that informed of “dis- was money already point- judgment. We have provision claimer” contained in the written money judg- granting ed out that the of a warranty prior (in Manual) the Owner’s relief, ment was incidental and therefore delivery of the automobile. judgment give on the law side would not Owens, supra; relief. Owens McMurtry Mr. was cross-ex- When Rice, Estes, supra; Coleman v. Winslett v. respect ex- amined with warranties supra. him of the sta- tended to as fol- tion he testified Insufficiency the Evidence lows, viz: Assignments 19-22 raise the is he prove evidence insufficient “A. Mr. told was Gunter me warranty by Tiger responsible on the car and Motor Com- for service contrary in this pany, only but to the there evidence was one dealer every performed shows that it has area. warran-
to Ford zvilh fiQ. “A. He told me me. He said that Company, didn’t he? he was responsibility responsible was he has him, the “Q. [*] put And when was the owner’s manual? [*] evidence, [*] h= here, warranty [*] delivered to # it “Q. warranty read that “A. just usually You given Now, be- performed along by the dealer. with the bill of a copy sale and you warranty,, ginning contract, the conditional sales should it read, war- was the Ford have been financed at the same time. ranty, carry out. the dealer will “Q. you know, As as papers those far Isn’t that the contract ? were delivered him at the same time Well, Mr. zvas, “A. the contract zvas with the car or the day next ? n “A. Chances was that it was the next he Gunter, explained to me that car service on the responsible was day, they because typed up to be directly to him. look and we type up cannot it until signed. So, impossible it is to deliver says “Q. warranty But the car and not papers deliver the at the made, only isn’t it? one that same [Emphasis time.” supplied] only one that was made “A. The 7A, Comment, Official anything else me was verbal than more 2— Recompiled Code provides that this accepting and I received this book after section protect buyer “seeks to from un- delivery the vehicle. expected unbargained language of dis- you pur- Before “THE COURT: claimer denying effect language to such car, McMurtry, did Mr. Mr. chased when language inconsistent with express anyone you that there else tell Gunter or warranty permitting the exclusion of warranty? to be a written implied warranties by conspicuous language or other circumstances which No, said, “A. we I discussed the protect surprise.” warranty given and what was me was twenty-four twenty-four months or thou- In Cherokee Investment Co. v. Voiles *7 [Emphasis supplied] (Colo.) sand miles.” 443 P.2d buyer of a defective water brought conditioner against suit sell- Gunter, Tiger, di- Mr. President of on er for implied breach of warranty fit- examination, gave following rect the an- Judgment ness. buyer was entered for questions: the following swers to seller appealed claiming, alia, inter that a disclaimer clause printed contained in its “Q. are familiar the trans- You with order form was sufficient under the Uni- your corporation had actions that has form Sales Act to negative any implied McMurtry? with Mr. warranties which under the Act Sales them, yes. “A. Most of might normally attach to the sale. equipment that “Q. The stated the Who sold him this ? disclaimer car purchased buyer by subject the manu- to personally it “A. I sold to him. warranty, only it war- facturer’s is the ranty express pur- implied either or made “Q. What, anything, you if did tell suant to this The Court sale. Colorado respect him with to on the warranties * * “* found no whatever evidence the automobile? that question the disclaimer clause in explained “A. I plaintiff’s they the warranties that called to attention or Ford Manual obligation and the dealer’s it understood was intended to relieve Cher- perform
to contrary, liability. plain- warranties. those okee of On the testimony type argument This was that riod time. uncontradicted
tiffs’ they Corporation novel. In they call General Motors to Cherokee were advised Earnest, with the conditioner.” So.2d had trouble buyer brought provisions of an automobile that suit determined “clearly brought the dealer and manufacturer for of “disclaimer” should be * * rescission buyer contract basis the attention of to warranty. also, There, Regina Manufacturing the evidence See Smith shortly disclosed that Cir., after the automobile 826. Corporation, 4 396 F.2d purchased, purchaser brought it in Thus, opinion are of the we to dealer vibrated complaining express the disclaimer cannot defeat badly, motor, had a knock in idled warranty McMurtry. made oral to roughly. repair attempted The dealer it. Thereafter, purchaser continued to Warranty Breach b. complain defects, .about various and in fact returned the automobile the dealer 'fif- Company contends Tiger Motor repairs. teen times The dealer con- carry out willing to been at all times has tended, here, as does the that it dealer warranty Ford made express up warranty agreement lived and re- warranty McMurtry. The Company to placed repaired or all defects and would to re Company was Ford made throughout so the life of the continue do defec to the cost place without warranty. answering dealer’s conten- repairs made effect all parts and to tive tion, we said: parts, provided such necessary by defective aft 24 months within defects are revealed agree appellee’s “We can with the con- usage, arid purchase, miles er point . tention that at pur some after the be sub the vehicle provided further chase a new the same service.” “normal use j ected condition, put good should be running part to a failure on In the absence is, an seller .does not have un called repairs when vehicle make limited performance for the time so, it can upon insists to do obligation replace parts. repair any warranties. breached found Sales, ; 46 Amjur., 732 77 Sales § C.J.S. saying This is no more than notwithstanding is made This contention fact, time, some it must become ob McMurtry’s station vious all people particular that a vehi repairs at least 30 returned “on cle simply repaired parts cannot be custody of remained in occasions and replaced so that same is made Inc., respondent Tiger Motor free supplied] [Emphasis of time repairs during period said from defect." April for not less [April 1968] Here, McMurtry repeatedly been fifty days perhaps forty than (40) *8 the to Mo- forced vehicle return to days.” (50) repairs. It has had nu- Company for tor perform to under the effect, Tiger opportunities it merous contends all warranties, yet remedy it to the has failed right to defects pe- apparently unlimited an defects. automobile for 725, 7A, of Code 3. 2—101 to §§ WARRANTY. Title VEHICLE “BASIC 2— Recompiled 1958, pertaining Alabama, to warrants Ford Motor part Code’s Ford-built vehi- sales is the Uniform Commercial of this owner each formerly counterpart con- what under use was free normal cle to be Act, Title material Uniform Sales defects tained service period workmanship 1-76, 24 months of Alabama 1940. for a of Code §§ delivery original of retail date from the use, been driven first or until it has or miles, first.” comes whichever Smith, Chevrolet, discovery (b) In Zabriskie Inc. without of stich non- conformity an automo- if N.J.Super. acceptance A.2d was’ purchaser reasonably of a new dealer sued the induced bile either the dif- discovery accept- for the ficulty automobile balance of before price. buyer for the The counterclaimed ance the seller’s assurances. deposit and incidental ex- return of his (2) acceptance Revocation of must occur that, penses. Jersey The New held court within reasonable time after the defects in the automobile constituted buyer discovers or should have dis- im- contract of sale covered the for it and before plied warranty merchantability. change substantial in condition of the goods which is not caused case, buyer’s picked up In that wife had own their defects. is not effec- driving the new was buyer tive until the notifies the sell- home when the car car con- stalled. The er of it. stopped. tinued to stall whenever Buyer immediately stopped payment on his buyer A(3) who so revokes has the given purchase price, check and no- rights regard same and duties with tified seller the sale cancelled. The goods to the involved as if he had Jersey purchaser New determined the court * * rejected them “accepted” within- had never the automobile contemplation Com- Uniform 7A, 2-608, Alabama, Code of [See Code; therefore, buyer mercial enti- Recompiled provisions.] identical reject tled car because of its non- conforming Also, held en- defects. he was . The Official 2- Comment to Title 7A, § payment. titled to a refund of his down Alabama, Recompiled Code speaks acceptance to revocations of Assuming deciding Mc- without provides: Murtry “accepted” the with- station meaning of the Uniform Commer- acceptance “2. Revocation possi- Code,4 question cial as wheth- arises ble non-conformity where sub- purchaser er a is entitled rescind the stantially impairs goods the value of the prior “accepted” sale if he the automobile buyer. purpose For this the test purchase. to rescission of the contract of is not what the seller had reason know Chevrolet, The Inc. v. Zabriskie contracting; question at the time of Smith, supra, said: is whether the non-conformity is such as will in impair- cause a substantial fact accepted “Even the defendant had ment buyer though value to tendered, right the automobile knowledge seller had no advance as ** to revoke *: buyer’s particular circumstances.” [Emphasis supplied] (1) accept- revoke his of a lot ance commercial unit the non-conformity Was station non-conformity substantially whose wagon in a magni- the instant case impairs its value him if he has tude impairment cause a “substantial- accepted it. buyer, McMurtry of value” to the ? *9 (a) on the assumption reasonable necessary do not We consider to bur- its non-conformity would be opinion den recapitu- awith cured seasonably and it has not by been lation of the Mc- evidence adduced cured; or Murtry relative the defects' in the’Sta-
4. TKis was not a issue in this case. a determine what is “sub- the own merits to earlier that its noted wagon.5 tion We impairment are of value.” We repairs an in- stantial taken in automobile person period that what cause one during the aware of times number ordinate loss, may inconvenience or financial McMurtry’s possession. great in it was in which case, are of another. In the instant we following as constitut- the mention We supports the opinion con- the the evidence The automobile defects. of the ing some clusion that there has been substantial complainant an extent oil used complainant, impairment Mc- of value to case. purchase it the forced Murtry. gallon per approximately miles got pump, new been a Having fuel that there has required a new determined and gas, value, re- rings, impairment the carburetor, piston "short substantial new maining question is what constitutes automobile contin- Thereafter, the block.” McMurtry had oil at an “reasonable in which misfire, use time” skip and to ued to the instruments to rescind the within rate. excessive 2-608, supra. meaning This of § 7A, provisions Uni- the note that We Code entitles section Commercial intended to be Code are form Commercial acceptance of “lot or revoke his applied promote “liberally construed and non-conformity unit,”6 if commercial policies.” Ti- underlying purposes and its substantially impairs its value thereof Alabama, Recom- tle Code of § accepted 1-— “on him if he the automobile (a) 7A, piled 1958. assumption that non-con- the reasonable formity it has not been cured and right The to rescind does seasonably cured,” accepted if he (b) warranty. every breach of discovery arise from of such the automobile “without carefully examined on non-conformity acceptance Each case must be sea- summary following January, 1968, tober, of evidence and that Tiger Company, written is contained defects Inc. Motor the said rings, piston of the trial court: decree there- but installed new “ * * * automobile used that said continued to use said automobile after excessively; of oil from the excessive amount an time it was that March oil purchased Company, Tiger respondent from the said Inc. Motor having Company, Inc., Tiger re- Motor a ‘short block’ said installed quired adding quart wagon one of oil told the automobile and station during driven, respondent Tiger complainant the first 500 miles finally Company, un- blue oil from that said automobile had re- Inc. Motor paired gasket, wagon defective der the and that automo- station said causing bile, condition said automobile to but thereafter the said 1967 sta- wagon oil oil from use excessive blow continued to use tion automobile gasket rate, was never corrected oil skip an continued excessive Tiger Company, Motor Inc. and said numerous or misfire and exhibit defects, said continued use automobile which de- other mechanical excessively parked in until it was oil station fects continued until wagon said complainant’s driveway parked in the automobile was April, 1968, driveway aforesaid; complainant’s after the com- month plainant April 5, during period said automobile had tendered that 1967, Company, April, Inc. to the said Motor end of until the requested money hack which was re- said station automobile paid respondent Tiger said and the had turned to the bought complainant Company, repairs oil case for Inc. on at least automobile; custody before the com- said plainant and remained in the occasions Compa- respondent Tiger driven the said automobile during Inc., repairs period ny, that said automobile was miles said gallon getting approximately per forty (40) days 8 miles for not less than time ** gasoline; days fifty perhaps (50) said new fuel Inc. installed a 7A, 105(5) September, pump 6. See definitions at Title on said automobile 2— (6). and a new carburetor Oc- *10 difficulty ing the the the condition of vehicle sonably (unlike induced either the sell- acceptance the situation in discovery before Barnes v. Chester Burnham McMurtry Chevrolet, Inc., Obviously, supra). assurances.” Under er’s the terms warranty, reasonable purchased automobile on the the under the terms non-conforming de- assumption that Uniform Commercial any Code the seller right attempt has the be fects would cured. “cure” de- in the (See, fects automobile. Zabriskie Supply Dairy & Gorman-Gammill Seed Chevrolet, Inc. Smith, supra, a dis- for Carlisle, Co. v. So. cussion meaning of “cure” within purchase for the an action on a note was contemplation Uniform Com- plant. The de- price light of water Code.) mercial Appellant argued was rescission. fense delay However, right that the to rescind was lost we noted Motors General “* * * Appellee Corporation it. attempt Earnest, exercise supra: delay contended that of 8 months at some after the aof new the efforts electing rescind due to put good was same should be appellant plant condition, running is, would show the seller does pur- for it was handle work which not have an per-'"'^ unlimited time for the p. chased. This court held at obligation replace formance * *” * p. repair parts. 290: “It has been more than once stated in Repeated attempts at adjustment"") opinions court, of this reaf- now having failed, buyer McMurtry j we hold the firmed, delay exercising right ; acceptance revoked his of the automobile promises rescind due to and efforts of within a reasonable time. plant seller to demonstrate that We find no therefore of reversal purpose suitable for the insufficiency of the evidence. purchased is an excuse for such de- * * *” lay. remaining assignments error argued by counsel are those numbered In Barnes v. Chester Burnham Chevro- They are to the effect let, (Miss.), Inc. 217 So.2d an automo- trial in finding court erred Mo- brought bile seller suit to recover deficien- tor not entitled relief cy on the buyer sale an automobile after cross-bill, under and that the court delinquent became payments and re- require McMurtry equity. failed to tó do turned the automobile Buyer to seller. We have all discussed of these contentions counterclaimed for warranty. breach of fully. Any rather here further discussion The court found buyer kept since would redundant. period car for a of nine months after seller We conclude there was no reversible er- longer it, no repair preclud- he was record, ror in the trial ed seeking a rescission of the sale is due to be since affirmed. failed to return car within a reasonable time and given had not seller Affirmed. any notice that rescinding he was the sale during period. this LIVINGSTON, SIMPSON, J., and C. HARWOOD, MERRILL and JJ., concur. We think the supports evidence the con- clusion that war- COLEMAN, JJ., LAWSON and dissent.. ranted that it would all defects 24,000 miles, first the first 24 COLEMAN, (dissenting): Justice purchase, months after whichever comes case, first. In buyer case, instant question was in is raised almost constant touch with seller concern- whether a is entitled to a chattel *11 against rescind contract on Motor
proceed
equity
to
Ford
Credit
in an
ground
the seller
breached
action at law.
repair
chattel.
contract to
decree,
As I
the final
read
the trial court
established
appears
be
to
did
it necessary
any
not find
to award
“* * *.
allegations
neither
were
there
Company.
relief
Ford Motor Credit
Also, it
fraud.”
to establish
nor evidence
The trial
did
court
not order Ford Motor
any mistake
appear
there was
does
Credit
anything.
to do
I find
making of the con-
into the
entered
only
paragraphs in
two
the decree wherein
tract.
reference is made to
Credit
Ford Motor
“
Company.
paragraphs
In those
the court
juris-
equity do not take
‘Courts of
orders:
merely
purpose
declar-
of
diction
for
rescission,
only
purpose
ing a
but
* * *
That the said
automobile
“3.
equitable
of
administering
form
some
of
* * *
complaint
is
in the
described
protection not available
other
relief or
property
respondent
now the
of
forums, where, by
insol-
reason of the
or
Inc., subject
to
Company,
Motor
judg-
offending party, a
vency of the
mortgage
thereon
chattel
contract
or
compensate the
to
might
at law
fail
ment
assigned
which was transferred and
injured party,
place him
statu
or
respondent
Com-
Ford
Credit
Motor
249,
242,
Cole,
quo/
176 Ala.
Hafer v.
Company,
pany, and the said
Drennen,
757,
Cooper v.
760.”
57 So.
and
Inc., be,
hereby,
authorized
and
is
549,
Ala.
against Tiger Inc. Such judgment law and could be awarded at complainant
would make whole. case, complainant
As I understand the
had the use for eleven automobile
months and drove it miles. over one, relatively and it a minor
may respondents be that are entitled placed quo, general
be statu but rule party seeking to rescission is that parties should to their
rescission restore
original position equity. do he offers to respect complainant the right
With equity, juris-
to maintain suit separateness
diction where between law maintained,
and equity is this case is cer-
tainly impression one first generis.
sui I would demurrer sustain the the case transferred to the law order 13, 149, Code 1940.
side.
R. D. et al.
J. RAMSEY. Robert
Supreme Court Alabama.
June