Bradford v. Bush , 10 Ala. 386 ( 1846 )

COLLIER, C. J.

-It does not follow that if a person is authorized to sell property, his agency continues, so as to permit him to rescind the sale, or ■ adjust the damages which the vendee may sustain by a breach of warranty. The transaction is complete by the sale, and the rights of the parties become vested, the one in the thing sold, and the other in the price. And it is incumbent upon the vendee, if he relies upon the acts or declarations of a third person as furnishing a defence to the payment of the purchase money, to prove that that person occupied such a relation in respect to the vendor, as made his acts and declarations evidence against him.

Where the declarations of a party are given in evidence against him, it is competent to prove every thing he said at the time, upon the same subject. But it is not permissible for him to prove what he said at a subsequent time.

A party may show the facts to be diiferent from what his own witness has stated them. Where a witness by surprise gives testimony against the party who calls him, he may make out his case by other witnesses. It is however, understood to be well settled, that a party cannot discredit the testimony of his own witness, or show his incompetency; and the reason of the rule is this, it would be unfair that he should have the benefit of the testimony if favorable, and be able to reject it if the contrary. See Winston v. Mosely, 2 Stew. R. 137. We need not stop to make a particular application of these principles; for it is sufficiently apparent that the ruling of the circuit court, in respect to the testimony of the witness, Alexander, and the conversation of the defendant and Likens is directly opposed to them.

It does not appear, that what was said by Connelly to Riddle at the time of the sale by him to the latter, was ever communicated to the plaintiff or his agent. Upon no principle were such declarations admissible evidence upon the trial of this cause ; but should have been treated as res inter aliso, Their tendency could only have been to embarrass the cause and mislead the jury; and should therefore have been re-r jected.

The question whether the affirmation of Likens, at the time of the trade with the defendant, that “ Eliza Gray” was two years old, was a mere representation of his opinion, or was a positive assertion of a fact, and intended and understood as a warranty, is a matter properly referrable to the jury. See Ricks v. Dillahunty, 8 Porter’s Rep. 134, and cases cited at page 139. In Skinner v. Gunn, 9 Porter’s Rep. 305, it was held, that “ an agent employed to sell a horse may warrant him to be sound, that being usually done in such cases,” unless there is some restriction upon his power. See also, Gaines v. McKinley, 1 Ala. R. N. S. 446. As the age of a horse is usually an important consideration in adjusting his value, which in the absence of knowledge upon the subject, skill and judgment are required to ascertain it. Upon principles of analogy, an agent to sell, with unrestricted powers, is authorized to warrant the age of a horse. There is nothing in the record to inform us, that the court did not properly refer to the jury the effect of Likens’ representation as to the age of “ Eliza Gray,” and in the absence of proof to the contrary, we must intend that its action in this respect was regular. But however this may be, as the matter was before the jury by the evidence, the testimony of Riddle, showing the difference in value of such a filly, if she had been two instead of four years old, and thus furnishing a criterion by which the damages should be recouped, was altogether pertinent. If the jury were of opinion that what Likens said did not amount to a warranty, of course the evidence of Riddle would pass for nothing, but if they attained the opposite conclusion, then, that evidence would be important.

It results from what has been said, that the judgment of the circuit court must be reversed and the cause remanded.