B.F. Roden Grocery Co. v. Gipson

• Decision Date: 01 May 1913
• Citation: 62 So. 388,9 Ala.App. 164
• Parties: B.F. RODEN GROCERY CO. v. GIPSON.
• Court: Alabama Court of Appeals

62 So. 388

9 Ala.App. 164

B.F. RODEN GROCERY CO. v. GIPSON.

Court of Appeals of Alabama

May 1, 1913

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Assumpsit by the B.F. Roden Grocery Company against H.P. Gipson. Judgment for defendant, and plaintiff appeals. Affirmed.

The amended third plea is as follows: "Defendant says that the note sued on was executed as a part of the purchase price for an automobile bought from plaintiff for the sum of $1,400, of which $700 has been paid, and it says that at the time of buying said automobile the plaintiff represented and warranted to defendant that said automobile would climb a 30 per cent. grade, and that it would climb with its load any of the hills along the public roads of Walker county, Ala Defendant resided in Walker county, Ala., and bought said automobile for his personal use along the public roads in said county, and defendant says that said automobile would not climb a 30 per cent. grade and would not climb many of the hills along said public road of Walker county, and that by reason of the failure of said automobile to climb the hills on the public roads of Walker county, Ala., as warranted, defendant was prevented from using said automobile along the public roads of Walker county, Ala., and that said automobile by reason thereof was of little or no value to defendant. Defendant says that by reason of the facts stated the warranty made by plaintiff to defendant has been breached and defendant thereby damaged in the sum of $1,400, which he hereby offers to set off or recoup against the plaintiff, and claims judgment for the excess." The fifth assignment of error is that the court erred in overruling plaintiff's objection to the following question propounded to the defendant: "Have you ever been over the same road in other cars?" The sixth assignment sustaining defendant's objection to the following question "Mr. Bivens, I will ask you to tell the jury whether or not a man of the experience testified to by Mr. Gipson could take that car apart and put it back properly without having it disarranged, so the car would not do the work properly." Seventh assignment, sustaining defendant's objection to the following question "State whether or not a man with the experience of defendant, and with the experience that he states he has could take that car down and put it up without putting it in such shape as would disarrange it so that it would not do the work entirely."

Thompson & Thompson, of Birmingham, and D.A. McGregor, of Jasper, for appellant.

Bankhead & Bankhead and Davis & Fite, all of Jasper, for appellee.

WALKER, P.J.

The appellant assigns as error the action of the court in overruling its demurrer to the amended third plea. That plea after averring that the plaintiff, at the time it sold to the defendant the automobile for the price of which the notes sued on were given, represented and warranted that it would climb a 30 per cent. grade and that it would climb with its load any of the hills along the public roads of Walker county, Ala., for the defendant's personal use along which he bought the machine, averred that said automobile would not climb a 30 per cent. grade, and would not climb many of the hills along the public roads of said Walker county, and that by reason of its failure to do so the plaintiff was prevented from using it on said public roads in consequence whereof said automobile was of little or no value to him. The plea further averred that the defendant had paid to the plaintiff $700 on the $1,400 purchase price of said machine, and for the breach of warranty alleged claimed damages in the sum of $1,400, which it offered to set off or recoup against the demand of the plaintiff. Mention will be made of the grounds of demurrer which are sought to be supported by the argument of the counsel for the appellant: (1) The failure of the plea to aver a return or an offer by the defendant to return the automobile within a reasonable time after his discovery of the breach of the warranty did not constitute a demurrable defect in it. It is well settled that, when there is a breach of a warranty made in the sale of goods, the buyer may either rescind the sale and refuse or return the goods or accept and retain the goods and bring an action for breach of warranty, or, in an action by the vendor for the price, recoup by way of counterclaim damages for breach of the warranty. Baer & Co. v. Mobile...