Riddle v. Webb , 110 Ala. 599 ( 1895 )

HEAD, J.

If during the negotiation of the trade plaintiff said to defendant, “If there is anything wrong with these mules not discernible, I want you to tell me,” and defendant said they were as sound as a dollar, it can not be affirmed as matter of law that the statement of the defendant was the mere expression of an opinion. The defendant was not called upon to express an opinion, but he was required to state absolutely whether there was anything wrong with the mules not discernible or not. And the defendant responded absolutely that they were as sound as a dollar.- If" the trade was made upon faith of this statement, it amounted to a warranty of soundness. Charge No. 1 was, therefore, properly refused.

This is not a case for the application of the doctrine of contributory negligence, as charges Nos. 2, 5, 6 and 8 seek to invoke. Those charges were properly refused.

Charge No. 3 is an argument pure and simple. Its refusal was proper.

Charge No. 4 invaded the province of the jury. It is true that it is the duty of the jury to consider all the testimony, but it is for them to determine the weight and value of the several parts thereof, and if the circumstances justify it they may accept a part and reject the balance. It will not do, therefore, to instruct the jury that their determination of the case must be reached from the whole evidence, and not from one or more sentences alone. Charge No. 4 was, therefore, properly refused.—Hurd v. State, 94 Ala. 100.

Charges No. 7 fails to set forth all the material phases of the plaintiff’s case as disclosed by the testimony, and requires a finding against the plaintiff upon one phase of the testimony only, if the jury shall believe as therein hypothesized. Thus the charge instructs that if the defendant told the plaintiff that the mules were as sound as a dollar except the big ankle, and that he had been struck over the eye, but it had got all right, and this was an expression of an. opinion, and the defendant believed this to be true, and made it in good faith, then he would not be responsible, notwithstanding one of the mules may have proven to have diseased eyes. Now, one Newton Garner testified for the plaintiff that he was present when the trade was made, and that plaintiff said to defendant, “Now Ben, if there is anything the matter with these mules that I can’t see, I want you to tell me; if there is anything wrong with them I am going to come back on youthat defendant replied that they were all right, were as sound as a dollar. If the jury accepted this phase of the testimony as the true one, and a trade was made upon the faith of what was said, then there was in law a warranty of soundness which imposed liability upon the defendant although what he said may have proceeded from opinion and not from absolute knowledge. The defendant may not have known of the existence of any disease in the animal and may have honestly believed there was none, yet, if so believing, he stated as an absolute fact that the mules were sound, in response to the plaintiff’s declaration that he would come back on him if they were not, the assurance, nevertheless, had the effect of a warranty binding upon the defendant. The charge in question does not exclude this liability upon a finding by the jury that this is not the true aspect of the uase.—White v. Craft, 91 Ala. 139.

We find no error in the record, and the judgment of the circuit court is affirmed'. '