Frith & Co. v. Hollan , 133 Ala. 583 ( 1901 )

TYSON, J.

This action was brought to recover the balance claimed to be due on the purchase price of onion sets sold by plaintiffs to defendant. The sale of the sets was at Troy, Ala., to the defendant as a merchant and by description. When delivered they were in bad condition, much of them being unmerchantable. In such case there is an implied warranty, that the sets delivered shall not only answer the description, but that they shall be salable or merchantable. — Gachet v. Warren, 72 Ala. 292; 15 Am. & Eng. Ency. Law, (2d ed.), 1229. The defendant upon discovery of the condition of the sets had the right to rescind the sale within a reasonable time and return them; or retain them and avail himself of the damage he had suffered either by bringing his cross action for the breach of warranty, or to prove their rea.1 value and abate the recovery pro tanto.- — Brown v. Freeman, 79 Ala. 410; Eagan v. Johnson, 82 Ala. 233; Young v. Arntze Bros., 86 Ala. 116; 15 Am. & Eng. Ency. Law (2d ed.), 1255; Benj. on Sales (7th ed. Bennett’s), p. 965.

There is no evidence in the record tending in the remotest degree to support the theory that the sale counted on was by inspection and not by description. Under the evidence, it was a question for the jury to determine whether the price agreed to be paid by the defendant should be abated to the extent of the balance claimed by plaintiff against him.

It follows that the affirmative charge was properly refused to the plaintiffs. The other charges requested by them were at variance with the principles we-have declared and were correctly refused.

Affirmed.