Abraham Bros. v. Means , 16 Ala. App. 42 ( 1917 )

SAMFORD, J.

[1] 1. The count sufficiently described the unsoundness of the mule to put the defendant on notice of what he was to defend against. It would be unreasonable to require a plaintiff, not usually versed in the diseases of mules, to enter into a specific description of a disease requiring expert knowledge and perhaps scientific investigation. The allegation of the complaint was that the defendant had warranted the mule was “sound,” when, as a matter of fact, he was not “sound,” but sick. This presented a material issue of fact which could be taken by the defendant, and under section 5321 of the Code was sufficient. The demurrer was properly overruled.

[2-4] 2. Did the court err in overruling defendant’s motion to exclude all of plaintiff’s evidence? Transcript, p. 16. Under section 5328 of the Code, all actions on contract may be joined in the same action and separate verdicts rendered. But when one party to a contract repudiates it, the injured party may elect to pursue one of several remedies; and when these remedies carry a different measure of relief, they cannot be concurrently pursued. Mutual Loan Society v. Stowe, 73 South. 202 ;¹ Lowy et al. v. Rosengrant, 71 South. 442.² Count 2 in this case was for a breach of warranty in the sale of the mule, the measure of damages being the difference between the value of the property as it actually was at the time of sale and what it would have been worth had it been as warranted. Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4. Count 3 was for money had and received, in which -the measure of recovery was the amount paid, with interest. The first was based on the contract of sale, and the latter on a rescission of the contract, entirely inconsistent remedies growing out of the same transaction, and hence, if there was no evidence tending to support the count for a breach of warranty, the court could have sustained the defendant’s motion to exclude. But is this a fact? The plaintiff testified that the defendant said:

“I gave this boy a mule that is all right; * * f that if the mule * * * wasn’t sound and all right he would give him another one.” r

■ O’Rear corroborates this (transcript, p. 14), when he said defendant said the mule was sound and all right before and after the defendant drove off. This evidence, if true, tended to sustain the plaintiff’s theory that the 'defendant warranted the mule as alleged, and was sufficient to have submitted the question to the jury; and therefore, irrespective of the additional count, the court did not err in overruling defendant’s motion to exclude, as set out in the ninth assignment of error; besides, this question could only be properly tested by a demurrer to the evidence or the affirmative charge. Mobile L. & R. Co. v. Portiss, 195 Ala. 320, 70 South. 136; McCrary v. Sharpe, 188 Ala. 375, 66 South. 441; Wise v. Curl, 177 Ala. 324, 58 South. 286; Athey v. T. C., I & R. R. Co., 191 Ala. 646, 68 South. 154; Scales v. T. C., I. & R. R. Co., 173 Ala. 639, 55 South. 821.

Therefore it follows that there was no error in the court’s general charge as set out in the tenth assignment, or in the refusal of the court to give the affirmative charge for the defendant as to count 2.

[5] 3. Assignment of error 20, on account of the court’s refusal to give the following charge:

“If the jury believe from the evidence that the plaintiff is entitled to recover, they can only find for nominal damages”

—is good. The plaintiff cannot recover in this action for money had and received, as has been above discussed, and the measure of damages in a suit for breach of warranty is the difference between the value of the mule at the time of sale arid what it would have been worth had it been as warranted (Herring v. Skaggs, supra), that question became one of proof. It is shown by the testimony of the defendant that the mule was worth $207.50, but as to the difference in value, the jury could only conjecture. The court cannot say as a matter of law that the mule was of no value at the time of the sale and warranty. If that is so, the plaintiff must prove it in order to recover anything but nominal damages.

4. Assignments of error Nos. 3, 4, 5, 6, 7, and 8 — all of these questions called for evidence that was immaterial to any issue in the case.

5. In view of what has been said, and it being necessary to reverse the ease on errors that will eliminate the questions arising on the count for money had and received, it is unnecessary to notice the assignments of error relating to that count.

For the errors in the record in conflict with the foregoing views, which, for the purposes of another trial are sufficiently pointed out, the judgment of the lower court is reversed, and the cause is remanded.

Reversed and remanded.

1 15 Ala. App. 293.

2 196 Ala. 337.