Hayes v. Woodham

• Decision Date: 03 April 1906
• Citation: 40 So. 511,145 Ala. 597
• Parties: HAYES v. WOODHAM.
• Court: Alabama Supreme Court

40 So. 511

145 Ala. 597

HAYES v. WOODHAM.

Supreme Court of Alabama

April 3, 1906

Appeal from Circuit Court, Marshall County; J. A. Bilbro, Judge.

"To be officially reported."

Action by J. W. Hayes against Robert Woodham. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This was an action of detinue, begun by appellant against appellee for the recovery of a mule. The evidence tended to show that plaintiff and defendant entered into a trade by which plaintiff exchanged a mule for a horse belonging to defendant; that the defendant represented the horse to be perfectly sound, but that afterwards plaintiff discovered that the horse's eyes were unsound, and upon a discovery of the defect plaintiff carried horse to defendant, tendered him the horse, and requested a rescission of the trade, which defendant refused to rescind, and also refused to receive the horse and deliver to plaintiff the mule. The evidence further tended to show that afterwards the plaintiff turned the horse out on the commons, telling defendant that the horse was defendant's and that plaintiff would have nothing further to do with it, and demanding of defendant the mule; that after that plaintiff took the horse up off the commons and used it some. There was conflict in the testimony as to these facts. At the request of the defendant the court gave the general affirmative charge to find for the defendant.

Street & Isbell, for appellant.

J. A Lusk, for appellee.

TYSON J.

An offer to return the horse in a reasonable time, if there was a breach of the warranty or a fraud practiced on the plaintiff, after the breach or fraud was discovered, is equivalent in its effect upon the remedy to an offer accepted by the seller, and the contract is rescinded. In other words such an offer made within a reasonable time after a discovery of the fraud or breach of warranty, was just as effectual to rescind the contract of exchange as if the defendant had accepted it. Burnett v. Stanton, 2 Ala. 189; Jemison v. Woodruff, 34 Ala. 143, 146; Dill v Camp, 22 Ala. 259; Rand v. Oxford, 34 Ala. 476; Samples v. Guyer, 120 Ala. 611, 24 So. 942.

We need only apply this principle to see that under the testimony offered by plaintiff, if believed by the jury, there was a rescission of the contract of exchange by him, and that the legal title to the mule sued for was reinvested in him by his offer to return the horse, and the title to the...