Holman v. Calhoun

• Decision Date: 08 February 1906
• Citation: 146 Ala. 690,40 So. 356
• Parties: HOLMAN v. CALHOUN.
• Court: Alabama Supreme Court

40 So. 356

146 Ala. 690

HOLMAN v. CALHOUN.

Supreme Court of Alabama

February 8, 1906

Appeal from Circuit Court, Houston County; A. H. Alston, Judge.

"Not officially reported."

Action by J. D. Holman against W. M. Calhoun. From a judgment for defendant, plaintiff appeals. Reversed.

The defendant, testifying in his own behalf, was asked this question: "What guaranty, if any, did Thompson make at the time he sold you the mules?" And he replied that Thompson said that he would guaranty the mules to be sound and all right in every respect, and if they were not so he would make it good. There was motion by plaintiff to exclude the answer of witness; plaintiff having excepted to the court's overruling his objection to the question. Witness was further asked: "Did not Marvin Holman tell you that if the mules were not sound and all right that he would make it good?" There was objection to the question, which was overruled, and witness answered that Marvin Holman said to him on the day after the purchase that anything Thompson said about the mules they would make all right. Further testifying, witness said that on the day after the purchase he told appellant what Thompson and Marvin Holman had said to him about the mules, and appellant replied that whatever Marvin said he would stand to.

The plaintiff requested the court to give the following written charges, which were refused. "(2) If the jury believe from the evidence that there was a warranty made, and that the act of the agent in making the warranty was ratified by the plaintiff, then you must believe from the evidence that the defendant has paid to plaintiff the value of the mules in controversy, or you must return a verdict for plaintiff. (3) If the jury believe from the evidence that Thompson as the agent of plaintiff had no authority to warrant the mules at the time of the sale, and that if there was a warranty made and plaintiff had no knowledge of the warranty as made, and did not ratify the act of the agent having a knowledge of the warranty, then their verdict must be for the plaintiff."

The court in its oral charge instructed the jury that if they believe from the evidence that the damage to defendant did not equal the amount of the note, the basis of this suit then they must ascertain from the evidence the amount of the damages, if any, the defendant suffered on account of the warranty and failure of warranty and deduct same from the amount of the note, and render verdict for plaintiff for such balance, if any.

Sollie & Kirkland and W. L. Lee, for appellant.

Espy &amp Farmer, for appellee.

DOWDELL J.

The complaint declared upon a bond or ...