Englehardt v. Clanton

• Decision Date: 14 February 1888
• Parties: ENGLEHARDT v. CLANTON.
• Court: Alabama Supreme Court

3 So. 680

83 Ala. 336

ENGLEHARDT v. CLANTON.

Supreme Court of Alabama

February 14, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD judge.

This was an action brought by Mrs. Parthenia A. Clanton against John H. Englehardt and William E. Englehardt, partners, for the recovery of damages for a breach of warranty by the defendants in selling the plaintiff a certain kind of paint used for the painting of roofs, and called "The Mott Fire-Proof Paint." Upon the examination of one of the defendants, William E. Englehardt, as a witness, he testified that there was no such firm composed of John H. Englehardt and himself, William E. Englehardt, as partners; but that he and one T. Gardner Foster had purchased the right to sell this patented paint together, and were doing such business together. Thereupon the plaintiff asked leave of the court "to amend her complaint by striking out the name of John H. Englehardt, as defendant, and adding the words 'partner of T. Gardner Foster' to the name of William E. Englehardt; and also to strike out all the allegations of the complaint showing a contract by any partnership, leaving the name of William E. Englehardt as partner of T. Gardner Foster." The court allowed this amendment against the defendant's objections, and the defendant thereupon excepted. The evidence, as shown by the bill of exceptions tended to prove that the contract as to which a breach of warranty was alleged, was made with the defendant by the agent of the plaintiff; that said agent had been induced, by the representations of the defendant, to have his own house painted, had upon such representations he, acting as the agent for the plaintiff, had employed the defendant to paint the house of the plaintiff with the same quality of paint and paid him (the defendant) an increase in the price over what he paid for the painting of his own house. At the request of the plaintiff, the court gave the following charges, which were in writing: "(2) If the jury believe from the evidence that said Stone, (plaintiff's agent,) in making the contract with the defendant to paint the plaintiff's house, relied upon the representations made by the defendant in reference to 'The Mott Fire-Proof Paint,' and if the jury believe from the evidence that said paint was worthless, then plaintiff is entitled to recover of the defendant the amount shown to have been paid defendant under said contract." "(3) If the jury believe from the evidence that the defendant was dealing in 'The Mott Fire-Proof Paint,' and contracted to paint the house of the plaintiff with it, and if the jury believe that said Stone, as agent of the plaintiff, in making the contract relied on the judgment and skill of the defendant as to said paint, then there was an implied warranty that said paint should be reasonably fit for the purpose for which it was applied." To the giving of each of the charges, the defendant excepted separately. Among other charges the defendant asked the following charge in writing, and excepted to the court's refusal to give it: "The law will not imply a warranty from mere words of praise or commendation by a vendor of his wares, such as are ordinarily used by honest tradesmen as arts of persuasion to induce purchase. As a general rule, there must be the affirmation of some fact as distinguished from the mere expression of an opinion. To constitute expressed opinion a ground or instrument of fraud it must be knowingly false, made with an intent to deceive and must be accepted and relied on as true." The opinion of the court states such other facts as may be necessary to fully understand the opinion.

Rice & Wiley, for appellant.

Watts & Son, and Mr. Falkner, for appellee.

CLOPTON J.

When suit is brought on a joint contract against two or more defendants as partners, and during the progress of the trial the proof discloses that one of the defendants is not a partner, the complaint may be amended to meet the state of the evidence, and to remedy the misjoinder. In such case, an amendment striking out the party shown not to be a partner, and correcting the description of the partnership, does not work as discontinuance of the entire action. Jones v. Englehardt, 78 Ala. 505.

The suit is brought by appellee against appellant to recover the price paid for painting the roof of her house, the defendant furnishing a paint known as "The Mott Fire-Proof Paint." The complaint contains two counts-one for money had and received, and the other on an express warranty against leaking for the term of five years. The defendant denying an express warranty or representation of a fact, relies on the special defense that he had no personal knowledge of the paint, and so stated, and merely gave an expression of opinion as to its value based on the statements of his vendor. If the jury should find on the evidence that there was either an express or implied warranty of the utility and fitness of the paint for the purpose to which it was to be applied, and that...