Thompson v. Harvey , 86 Ala. 519 ( 1888 )

CLOPTON, J.

1. The first question in this case is, whether the plaintiff can maintain an action for the recovery of specific property. The transaction, out of which the controversy grew, was an exchange of property by the parties. We must assume, as was evidently found by the jury, that defendants warranted the soundness of the horse, which they delivered to plaintiff in exchange for the property sued for, and that the warranty was broken. Whatever may be the conflict in the authorities, it may be regarded as settled in this State, that the remedy of a buyer, to avoid a contract for the breach of a warranty, is' not restricted to cases where the warranty is fraudulent. This rule was settled as long ago as the decision in Barnett v. Stanton, 2 Ala. 181, in which it was said: “An offer to return the chattel in a reasonable time, on the breach of a warranty, or where fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy, to an offer accepted by the seller, and the contract is rescinded.” This rule seems to be sustained by the current of the later authorities in this country, and to be founded on sound principle. It would be a defect in the law, if a purchaser of property upon a warranty, which is broken, should be required to retain it, though totally unsuitable to the purposes for which he obtained it, and be put to his action for damages. In this ease, there were special stipulations as to the remedy, in the .event of a breach of the warranty. The defendants agreed, if the horse was not as represented, that they would either rescind the contract, and restore the property which plaintiff delivered to them in the exchange, or pay the appraised value of the horse. The latter stipulation was clearly for the benefit of defendants, and was intended to provide for any contingency, which might render the restoration of the property impracticable. The settled rule is, that on the return, or offer to return the horse, by plaintiff, the defendants forfeited the privilege inserted, for their benefit, if they neglected to avail themselves of it. In such case, it ceased to be binding on plaintiff, and the contract became absolutely rescinded.—Nesbit v. Pearson, 33 Ala. 668. The plaintiff, having rescinded the contract, is entitled to maintain detinue for the property, which he delivered to defendants in exchange for the horse. Marsion v. Knight, 29 Me. 341.

2. The only remaining question arises on a charge requested by defendants, to the effect, that if the defect, on which plaintiff claimed a rescission of the contract, was plain and perceptible, so that plaintiff could have seen it on examination, the doctrine of caveat eniptor would apply, and plaintiff could not recover. The court had already, in the general charge, instructed the jury that, though the defect was plain and perceptible, yet plaintiff had. a right to rely on the special warranty, and if he did so, and it was broken, he could maintain the action. Ordinarily, a general warranty does not cover defects which are manifest and obvious to all observers; such as are discernible by the eye, and comprehensible by the purchaser.—Livingston v. Arrington, 28 Ala. 424; Tabor v. Peters, 74 Ala. 90. In 2 Benj. on Sales, § 938, the ruléis thus stated: “A general warranty does not usually extend to defects apparent on simple inspection, requiring no skill to discover them.” But warranties may be extended to defects though patent. Where there is uncertainty and difficulty, and the representation is not glaringly inconsistent with the obvious condition and quality of the property, or where the results of the known defect are not apparent at the time, and could not have been reasonably foreseen, the buyer may rely on the warranty or representation, and not on his own judgment. 1 Whart. Contr. § 245; Marshall v. Drawhorn, 27 Ga. 275; McCormick v. Kelly, 28 Minn. 135.

The bill of exceptions states that the court charged the jury fully in explanation of the law applicable to the case, to which no exception was taken. Considering the portion of the general charge excepted to, in connection with a full and complete charge as to the law applicable to the case, we interpret it as intended merely to assert, that on a breach of the warranty, the plaintiff could maintain this form of action, and was not put 'to an action for damages. The charge requested by defendants must be construed in reference to the tendencies of the evidence. It appears that the apparent defect consisted in the thickness of the withers. Tbe evidence tends to show, that immediately on discovering it plaintiff followed tbe defendant, who made tbe exchange, and offered to rescind the contract; but kept the horse on his representation that it was his natural shape, and the reiteration of the warranty. It was for the jury to determine whether the defect was so plain and obvious, as not to require any skill to discover its nature, or to foresee its results. If the representation was made with the intention to obscure observation of the defect, and to prevent inquiry as to its results, and was calculated to mislead, plaintiff had a right to rely on the representation, without making further examination, or prosecuting further inquiry. Brown v. Freeman, 79 Ala. 406. The charge requested applied the doctrine of caveat emjptor to. all cases of defects plain and perceptible on examination, implied the duty to examine under all circumstances, and ignored the limitations and qualifications of the general rule as to patent defects. It was misleading in its tendency.

Affirmed.