Bevill v. Henegar-Dooley Shoe Co.

• Decision Date: 19 April 1923
• Docket Number: 6 Div. 879.
• Parties: BEVILL v. HENEGAR-DOOLEY SHOE CO.
• Court: Alabama Supreme Court

96 So. 133

209 Ala. 262

BEVILL v. HENEGAR-DOOLEY SHOE CO.

6 Div. 879.

Supreme Court of Alabama

April 19, 1923

Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.

Action by the Henegar-Dooley Shoe Company against Herman Bevill. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

Ray &amp Cooner, of Jasper, for appellant.

McGregor & McGregor, of Jasper, for appellee.

McCLELLAN J.

This action of assumpsit, instituted by appellee, a wholesale merchant, against appellant, a retail merchant, was to recover for shoes sold, by sample, to defendant by plaintiff. The defendant set up payment of all he was due plaintiff; and also, through special plea C, that certain types of the shoes, the purchase price of which constituted the balance on the account, did not conform to the sample, and, because of breach of warranty of quality, were returned to plaintiff by defendant within a reasonable time after defendant discovered that the shoes shipped were inferior in quality to the sample; and, eliminating from the account the purchase price of these returned shoes, the check sent discharged plaintiff's demand before this suit was commenced. Plaintiff's demurrer to plea C was overruled. Joining issue on the averments of plea C, plaintiff replied through special replications 2 and 3, to which defendant's demurrers were overruled. The major theory of these special replications to plea C, disclosed by recital of the facts was that defendant received the shoes in question, delivered on order given plaintiff's salesman, and kept them without any complaint, until more than 60 days after the purchase price therefor was demandable on October 1, 1920, viz. December 11, 1920, which was many months after their delivery to defendant about June, 1920. The matter of avoidance set up in the special replications was well interposed to the defense asserted in plea C. This plea (C) is of the category of pleas setting up rescission of a contract of sale of goods by sample because of breach of warranty.

Whether plea C was sufficient against apt demurrer is not presented for review. Having purchased shoes of a certain quality, and having received the shoes in question, the defendant could not successfully effect the rescission asserted unless he moved to rescind within a reasonable time. It was his duty to examine or inspect the goods, to ascertain their quality, within a reasonable time after the delivery of the goods to him; and, if he forbore or neglected an inspection or examination of the goods-to the end of ascertaining their quality-beyond a reasonable time after their delivery, his right to rescind was lost. Magee v. Billingsley, 3 Ala. 679 (headnote 4); Mechem on Sales, §§ 1211, 1212; Pope v. Allis, 115 U.S. 363, 372, 6 S.Ct. 69, 29 L.Ed. 393. Where the facts are undisputed and adverse inferences are not fairly deducible from the undisputed facts, the inquiry of reasonable time vel non...