Cleveland Laundry Machinery Mfg. Co. v. Southern Steam Carpet Cleaning Co.

• Decision Date: 22 April 1920
• Docket Number: 6 Div. 35
• Citation: 85 So. 535,204 Ala. 297
• Parties: CLEVELAND LAUNDRY MACHINERY MFG. CO. v. SOUTHERN STEAM CARPET CLEANING CO.
• Court: Alabama Supreme Court

85 So. 535

204 Ala. 297

CLEVELAND LAUNDRY MACHINERY MFG. CO. v. SOUTHERN STEAM CARPET CLEANING CO.

6 Div. 35

Supreme Court of Alabama

April 22, 1920

Rehearing Denied May 27, 1920

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Action by the Cleveland Laundry Machinery Manufacturing Company against the Southern Steam Carpet Cleaning Company upon a verified account. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911 p. 450, § 6. Affirmed.

Thompson & Thompson, of Birmingham, for appellant.

Richard H. Fries, of Birmingham, for appellee.

SAYRE J.

The demurrer to the third plea of recoupment should have been overruled, as it was. By said plea it appeared plainly enough that the indebtedness grew out of the transaction out of which plaintiff's cause of action arose, and was a subsisting claim at the commencement of plaintiff's suit. And in other respects the plea sufficiently described defendant's alleged cross-cause of action.

The charge set out in the fifth assignment of error was properly refused. It is true, of course, that if the only defect in the machine sold by plaintiff to defendant was in the gear wheel, and that could have been replaced or repaired at a reasonable outlay, it would have been defendant's duty in the way of minimizing damages, to replace the gear wheel but we cannot say as matter of law on the evidence that the machine was not defective in other respects--it may have been defective, at least there was evidence on which the jury might have hung a finding that it was defective, as a whole in that, even with a perfect gear wheel, it was and would have been unable to do the amount of work it was said to do. This charge ignored this phase of the evidence; but the court had no right to ignore it.

Charges shown in assignments of error 3, 4, 6, 7, and 8, requested by the plaintiff, substantially, each of them, the general affirmative charge against defendant's plea of recoupment, were properly refused. There was evidence, as we have said, tending to prove the inability of the machine as a whole, and evidence that its value was greatly less than the agreed purchase price. This evidence deprived the bench of the power to give the general charge requested; nor was this proposition as to the power of the court in the lest denied or modified by the further fact, assuming it to be a fact as alleged by appellant, that the...