Garnett v. Parry Mfg. Co.

• Decision Date: 20 November 1913
• Citation: 185 Ala. 326,64 So. 559
• Parties: GARNETT v. PARRY MFG. CO.
• Court: Alabama Supreme Court

64 So. 559

185 Ala. 326

GARNETT v. PARRY MFG. CO.

Supreme Court of Alabama

November 20, 1913

Rehearing Denied Feb. 12, 1914

Appeal from Circuit Court, Morgan County; D.W. Speake, Judge.

Assumpsit by the Parry Manufacturing Company against W.W. Garnett for the price of a dray. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Wert &amp Lynne, of Decatur, for appellant.

E.W Godbey, of Decatur, for appellee.

DE GRAFFENRIED, J.

In this case the bill of exceptions contains the following "After some time had been devoted to the settlement of pleadings, and while the pleadings still remained unsettled the court required the plaintiff and defendant to go to trial on the plaintiff's complaint and the defendant's plea of the general issue, with leave to give in evidence any matters of defense, special or otherwise, if a good defense to plaintiff's cause of action the same as if specially and properly pleaded."

No exception appears to have been reserved by any of the parties to the above ruling of the court, and we therefore take it that, in this case, the gap, in so far as the pleadings were concerned, was entirely let down by consent of parties; and we will treat the case as if there had been appropriate pleas setting up every defense to which the evidence in the case can be held to be applicable. Converse Bridge Co. v Collins, 119 Ala. 534, 24 So. 561.

(1) There was evidence tending to show that the Parry Manufacturing Company sold to W.W. Garnett a dray, for which Garnett agreed to pay the sum of $92.50. There was also evidence tending to show that, when the dray was ordered, and before it was delivered, the parties, by writing, determined the specifications of the dray, and that, in said writing, the Parry Manufacturing Company, by a special warranty, guaranteed each part of the dray to last for one year, with the understanding that, if any part of it broke or proved defective during said year, the broken or defective part should be returned to said manufacturing company, and a duplicate of such broken or defective part would then be sent to Garnett to replace such broken or defective part. The evidence further shows that, shortly after the making of the said agreement, the said dray was shipped to, and received by, the said Garnett. The evidence further tends to show that, upon the receipt of the dray, Garnett at once wrote the manufacturing company that the dray was not the dray ordered by him, and asking what the company desired him to do with the dray. We quote the following from the evidence of Garnett on the subject: "After receiving the dray and unpacking it and looking at it, it was not what we bought, and I so wrote them, and that it was not satisfactory, at all, and wanted to know of them what I should do with it. I think that was about the substance of the letter. I wanted to know what I should do with it--return it or keep it and try to use it."

Without regard to the question as to whether the dray was or was not the dray which Garnett ordered, Garnett testified as above stated, and he further testified that from that time until December 2, 1909, he and the said manufacturing company were writing to each other with reference to alleged defects in the dray, and that on December 2, 1909, the following letter was written to him by the said manufacturing company: "Mr. W.W. Garnett, Decatur, Ala.--Dear Sir: We have your letter regarding the dray, and as our Mr. Davis will be near your place Saturday of this week, will have him call upon you. We trust he will be able to adjust this matter satisfactorily with you. Yours truly, Parry Manufacturing Co." Garnett further testified that, shortly after he received the above letter, the said Davis called on him with reference to the dray, and, to again quote the language of Garnett while on the stand as a witness, that: "We went back to the office and talked the matter over, and he said that dray was sufficient to do anything that we wanted with it, and said: 'Load it; if you want to put 5,000 pounds on it, put it on, and, if it don't hold it, you don't have to pay for it. ***' He told us not to return the wagon, and to use it, and, if it broke down, we would not have to pay for it."

There was evidence tending to show that a load of 2,000 pounds was...