Hood v. Warren

• Decision Date: 13 January 1921
• Docket Number: 7 Div. 61
• Citation: 87 So. 524,205 Ala. 332
• Parties: HOOD v. WARREN et al.
• Court: Alabama Supreme Court

87 So. 524

205 Ala. 332

HOOD v. WARREN et al.

7 Div. 61

Supreme Court of Alabama

Jan 13, 1921

Rehearing Denied Feb. 10, 1921

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by R.L. Hood and E.B. Raley against Isom Warren and others for deceit in the sale of certain hogs, in which the declaration was amended during the progress of the trial by striking Raley as a party plaintiff thereto. Judgment for the defendants, and plaintiff Hood appeals. Affirmed.

J.M Miller, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellees.

GARDNER J.

This suit was originally filed by R.L. Hood and E.B. Raley against the defendants as individuals and as members of the firm of Warren, Killiam & Cox, but was amended during the progress of the trial by striking Raley as a party plaintiff thereto leaving R.L. Hood as the sole plaintiff in the cause. Some of the counts were for deceit in the sale of certain hogs, which it is alleged the defendants knew to be unsound, and count S was for breach of warranty in that defendants warranted the hogs to be in good condition, which was not the case. There was verdict and judgment for the defendants, from which plaintiff prosecutes this appeal.

The questions argued by counsel for appellant relate largely to matters of evidence, but the conclusion which we have reached renders their consideration unnecessary. The evidence was without dispute that the actual purchase of the hogs was made by E.B. Raley, representing himself and R.L. Hood; Raley testifying upon this point: "We bought the hogs as partners." Soon thereafter Raley sold his half interest in the hogs to Hood, but the sale of his interest in the hogs to Hood did not affect his right to maintain an action on the breach of warranty. 24 R.C.L. §§ 432, 516. The common-law doctrine of covenants running with the land applies only to real estate, and it is well settled as a common-law rule that the benefit of a warranty does not run with the chattel on its resale, so as to give the subpurchaser any right of action thereon as against the original seller. Section 432 R.C.L., supra. Therefore Raley, by the mere sale of his interest in the hogs to Hood, passed no right of action to the latter, but it remained in the firm or in the two as partners.

As previously shown, the cause proceeded to trial with R.L. Hood as a party plaintiff, and nothing appears in the instant case to take it from...