42 Ala. 230 | Ala. | 1868
The court charged the jury, “that if they believed the evidence, they must find for the plaintiff, and assess his damages at one thousand and thirty dollars, and interest from the 15th day of December, 1861.”
The error assigned is,-that the court erred in the charge given.
There is some obscurity in the “written statement” admitted in evidence as the testimony of James Donaldson and Whetson Weaver.
In an action on a promissory note, by an endorsee against the maker, under the facts shown by the record in this case, which note was given for the purchase-money due on the sale of mules guaranteed to be sound by the payee, the purchaser may recoup the damages he may have sustained by the breach of the guaranty, which the law is capable of measuring accurately by a pecuniary standard. — Hatchett & Bro. v. Gibson, 13 Ala. 587; Cage et al. v. Phillips, 38 Ala. 382 ; Wood et al. v. Fowler, 37 ib. 55 ; Sill v. Rood, 15 John R. 230; Sedg. on Dam. 431, et seq. and notes.
Upon the evidence introduced by the defendant in this case, he would in an action for damages for a breach of the warranty be entitled, at least, to recover nominal damages, if the jury believed the evidence and were satisfied from it, that there was a guaranty of soundness of the mules, and that one of them was unsound at the time of sale. The question of damages is one peculiarly within the province of the jury, and also the inferences to be drawn from the evidence where it merely tends to prove
The evidence is unsatisfactory upon the question of the damage sustained by appellant, upon the breach of the warranty and upon the identity of the note, as the consideration of the purchase of the mules ; yet all these matters under the evidence in this case, were peculiarly within the province of the jury, and in arriving at a conclusion “they could consult their general knowledge and their own experience in life.” — Rosenbaum v. The State, 33 Ala. 354.
And upon the doctrine settled by a series of decisions of this court, we are constrained to hold that the charge invaded the province of the jury. — Morris v. Hall, at present term.
This case is in contact with the line which divides the province of the court from the jury, and our opinion is, that it is within the province of the latter. The courts should be careful in the observance of a rule which secures to parties the right’ of a trial by jury, and inhibits an invasion of the province assigned to them by law.
For the error pointed out, let the judgment be reversed and the cause remanded.