Stewart v. Riley & Johnson , 189 Ala. 519 ( 1914 )

ANDERSON, C. J.

The counts upon which this case proceeded are not upon the theory of a rescission of the trade as to the automobile, but for deceit and a breach of warranty as to the two horses traded as a part of the purchase price of the machine, with one count for $50, claimed to be omitted from the check given the plaintiffs by the defendant.

While the breach of warranty or deceit is not based on any representations as to the age of the horses, yet the age of same was a circumstance to be considered by the jury in determining the extent of the unsoundness and the extent to which it would affect or impair the value of the animals.

There is no merit in the objection of the defendant as to whether or not one of the plaintiffs had a check in his pocket when he had the conversation with the defendant. As above stated, this suit was not upon the rescission theory, and if said evidence was immaterial, it was of no detriment to the defendant.

There was no error in declining to let the witness Knox testify as to how much land the plaintiffs got for the horses as they were entitled to the difference between the value of the horses warranted or represented and the value of those gotten, and whether they did or did not make a subsequent advantageous disposition of same had no bearing on the issue involved. Nor was it admissible as fixing the value of the horses, as there was no offer to show the value of the land.

There was no error in permitting the witnesses to testify as to the condition of the animals a day or two after the trade. ■ True, the inquiry was the condition of the same when the trade was made, but there was evidence from which the jury could infer that the injury or unsoundness existed before the trade was made, and was practically the same when witnesses saw them as when delivered to the son of one of the plaintiffs. There was proof that the horse had bad eyes before the trade, and that the cut was on the mare previous to said sale. Moreover, some of the witnesses who examined her testified that it was an old cut.

Whether there was or was not error in declining to let the defendant be asked if the car was a 26 horsepower matters not, as he was subsequently permitted to state, without objection that it would develop 20 horsepower.

The oral charge of the court as to the measure of the plaintiffs’ right to recover under the deceit counts was error, as they did not claim the value of the automobile or the purchase price of same, but only the difference in the value of the horses sold and the value of the ones delivered, but we think the verdict of the jury cured the error and showed that the error in said oral charge was not prejudicial to the defendant. If the trial court ignored the defendant’s plea of recoupment or set-off in the oral charge, he had his remedy by requesting charges on the subject.

It was a question for the jury as to whether or not the check should have been for $800 instead of $750, and the trial court did not err in refusing the general charge for the defendant as to the item of $50, nor. did the cashing of the check by the plaintiffs preclude or estop the plaintiffs from recovering the $50 if it was to have been paid. As heretofore stated, the suit is not upon the rescission theory, and the retention of or use of the check or horses does not estop the plaintiff from suing upon a breach of warranty or for deceit in the exchange of the property.

There is no basis for assignment of error 18, as the judgment entry shows that the appellant’s demurrer to count 3 was sustained.

The issues in this case were properly submitted to the jury, and the trial court did not err in overruling the defendant’s motion for a new trial, as the verdict of the jury was not contrary to the great weight of the evidence.

The judgment of the city court is affirmed.

Affirmed.

Mayfield, Somerville, and Gardner, JJ., concur.