Amzi Godden Seed Co. v. Smith , 185 Ala. 296 ( 1913 )

SAYRE, J.

In an action by appellee against appellant for an alleged breach of warranty in the sale of some seed oats, defendant recovered judgment over on its plea of set-off and recoupment. On Smith’s motion the court below set aside the judgment for error committed in the trial, and from this ruling on the motion the Seed Company has appealed, contending that the trial was unaffected by error, but that on the con-, trary the court erred in its ruling on the motion.

There was error in giving, on defendant’s request, the charge assigned as the tenth ground of error in plaintiff’s motion for a new trial. Plaintiff contended, and brought some testimony tending to sustain his contention, that defendant had not delivered the kind of oats it (defendant) had agreed to deliver. The charge precluded plaintiff’s recovery because defendant exhibited to him a sample of the kind of oats he (plaintiff) had agreed to buy, although it (defendant) delivered a wholly different and inferior kind. The charge was clearly erroneous and should have been refused. Appellee, recognizing this fact, is very clear in the statement of his position that obviously the charge was not intended to assert the proposition stated on the bare face of. it, and that evidently it had no influence or effect whatever with the jury. Probably so; but there is nothing in the record of the court’s action that goes to show that the error of the charge was cured or rendered innocuous, nor can we say that the evidence was so overwhelmingly favorable to defendant as that error against the plaintiff was of no consequence in the matter of the jury’s conclusion of fact. The effect of the evidence was fairly debatable, and its determination presented a question within the exclusive province of the jury, while, as for the suggestion that the intendments of common sense should be indulged in favor of the charge, the statute (section 5364 of the Code) commands that charges moved for by either party must be given or refused in the terms in which they are written. We are unable, therefore, to say that there was no reversible error in giving the charge, and hence we cannot say that the court below erred in setting aside the result so attained.

The charge given to defendant and assigned for error in the fourteenth ground of plaintiff’s motion for a new trial was erroneous also. It asserts that the printed matter on defendant’s billheads, if read by plaintiff before the transaction in question, and if nothing was said as to warranty at the time of the transaction in dispute, was conclusive against plaintiff. This printed matter, which concerned the terms on which defendant sold its seeds, was circumstantial and evidential only. It was a matter of inference whether the plaintiff had in mind the' matter of these billheads when he entered into the agreement for the purchase of the oats. On the whole, the jury might have inferred that he did not. A charge upon the effect of evidence, which is susceptible of a construction different from that placed on it by tbe court, invades the province of the jury and is error. — Stanley v. Nelson, 28 Ala. 514.

The trial court, setting aside the verdict and judgment, put its action specifically upon the error of those charges we have examined, and thus inferentially indicated its opinion that there had intervened no other reversible error. We are strongly inclined to think that the other charges discussed and held for error in appellee’s brief were misleading only and would not have availed for a reversal on appeal from the result of the trial itself. But in view of our decision to affirm the action of the trial court in setting asidé the judgment, already indicated, it is not necessary to go further in our statement touching the other charges or to express an opinion as to whether- the fact that the trial judge assigned specific reasons for his ruling on the motion should be allowed to limit the inquiry in this court. The following cases may be consulted on this point: Karter v. Peck, 121 Ala. 636, 25 South. 1012; L. & N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 103, 27 South. 760; Woodward Iron Co. v. Brown, 167 Ala. 317, 52 South. 829.

Defendant in the court below pleaded inter alia as follows: “And defendant as a defense to the action of the plaintiff saith that at the time said action was commenced the plaintiff was indebted to the defendant in the sum of $181.00 by account which was then due and payable to the defendant and which it hereby offers to set off against the demands of the plaintiff, and he (it) claims judgment for the excess.” Now appellant claims that its set-off was proved without conflict, or it was except as to the purchase price of the seeds in controversy, which went in part to make up the sum claimed in the plea, and that the defendant was entitled to the general affirmative charge because thd said plea purported to answer the whole asserted cause of action. In unmistakable effect the plea is a plea of set-off and recoupment. It does not deny plaintiff’s claim. Inferentially it admits that claim-, for the purposes of the plea only however, and alleges a counterclaim. It scarcely seems necessary to say that appellant’s contention on this point is without merit.

The judgment of the trial court on the motion is affirmed.

Affirmed.

McClellan, Mayfield, and Somerville, JJ., concur.