Thomas v. Thomas , 146 Ala. 533 ( 1906 )

DOWDELL, J.

This is an action to recover damages for the breach of a contract. The contract was in writing and is set out in full in the complaint. The cause was tried in the court below on issue joined on pleas Nos. 1 and 4. A demurrer was interposed to plea 4, which was overruled, and the ruling of the court constitutes the ground of the first assignment of error. Plea 4 is termed by the pleader a plea of recoupment, and as such was insufficient, but was good as a plea of set-off. There was, therefore, no error prejudicial to the plaintiff in overruling the demurrer to this plea.

The contract set out in the complaint is an executed, and not an executory, contract. There was nothing which remained to be done between the parties to determine the quality, quantity, or value of the goods. All that remained to be done was to check up the invoice furnished by plaintiff to the defendant for the purpose of ascertaining what deduction should be made on ac-count of goods sold out of the stock subsequent to the time that the said invoice was furnished. — Hudson v. Weir, 29 Ala. 294, Mayfield’s Dig. p. 745, § 50. Plea No. 1 was the general issue, and, as we have said, plea No. 4 was the plea of set-off. These were the only pleas upon which the case was tried. In the absence of special pleas of a breach of warranty or of fraud, evidence of such matters is irrelevant, and should not be admitted against the objection of the party against whom it is offered. There was evidence of this character admitted against the objection of the plaintiff, and in this respect the trial court committed error.

The contract sued upon contains the following express warranty: “The said party of the first part warrants said goods, stock, and- fixtures free of any debt, mortgage, incumbrance, or adverse claim of any kind.” And the contract contains the further clause: “Should the goods not turn out as per said invoice, or the party of the second part fail to secure said house to October 1, 1904, or the length of term lease of the party of the first part runs, then this contract is null and void.” The contract containing an express warranty excludes the idea of any other warranty than that so expressed. Moreover, as was said in West v. Cunningham, 9 Port. 104, 33 Am. Dec. 300: “The rule that a sound price warrants sound property, and unless there be a special agreement to take the property, sound or unsound, is not according to the course of-judicial decisions of common law, and is not the law of the state.” But we need not pursue the discussion along this line, since, under the issues in the case, evidence of misrepresentation in the sale of the goods was not competent, and should not have been admitted against the objection? of the plaintiff.

For the errors pointed out, the judgment of the court will be reversed, and the cause remanded.

Reversed and remanded.

Haralson, Anderson, and Denson, JJ., concur.