Johnson v. Oehmig

• Decision Date: 08 January 1892
• Citation: 95 Ala. 189,10 So. 430
• Parties: JOHNSON ET AL. v. OEHMIG ET AL.
• Court: Alabama Supreme Court

10 So. 430

95 Ala. 189

JOHNSON ET AL. v. OEHMIG ET AL.

Supreme Court of Alabama

January 8, 1892

Appeal from circuit court, De Kalb county; JOHN B. TALLY, Judge.

Assumpsit by Oehmig & Wiehl against Henry Johnson and L. M. Gordon for goods sold and delivered. The defendants pleaded a special plea, which set up that the account sued on was made for an engine and a set of mill-rocks; that after said purchase, and after defendants had paid the $100 in cash, they ascertained that plaintiffs had no title to the engine sold them by plaintiffs; that the said engine was the principal inducement for said purchase; and that before the defendants ascertained the want of title in plaintiffs to said engine they had made valuable improvements on the same. The plaintiffs demurred to the special plea. The court sustained the demurrer, and there was verdict and judgment for the plaintiffs. Defendants appeal. Affirmed.

W W. Haralson, for appellants.

L A. Dobbs, for appellees.

WALKER J.

In Ogburn v. Ogburn, 3 Port, (Ala.) 126, it was held that the vendee of personal property cannot, while holding possession thereof, defend against an action for the purchase money by proof of want of title in the vendor. In the course of the opinion in that case it was said: "We think no defense can be made to an action for the purchase money when the facts relied upon to make it would not, if the parties were changed, and the money had been paid, enable the vendee to recover it back for the breach of the warranty of title." The defendants would not be entitled to such recovery on the facts stated in their second plea. In an action by a vendee of personal property against his vendor for a breach of warranty of title, only damages for actual loss can be recovered. The plaintiff in such an action must not only establish that his vendor is without title to the property sold, and that another is the true owner, but also that he has restored the property to such owner, that it has been taken from him under compulsory proceedings, or that he has parted with money or property in consequence of a judgment obtained against him, or voluntarily in answer to a claim made for the property. O'Brien v. Jones, 91 N.Y. 193. In Harris v. Rowland, 23 Ala. 644, the property sold had been recovered on the adverse title. No such state of facts is shown by the second plea in this case. It is not averred that the defendants have in any way been disturbed in...