Kabase v. Jebeles & Colias Confectionery Co.

• Decision Date: 12 May 1908
• Citation: 155 Ala. 254,46 So. 581
• Parties: KABASE v. JEBELES & COLIAS CONFECTIONERY CO.
• Court: Alabama Supreme Court

46 So. 581

155 Ala. 254

KABASE v. JEBELES & COLIAS CONFECTIONERY CO.

Supreme Court of Alabama

May 12, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Detinue by the Jebeles & Colias Confectionery Company against Joe Kabase for a soda fountain and fixtures. Judgment for plaintiff, and defendant appeals. Affirmed.

The evidence tended to show the purchase by appellant from appellee of a soda fountain and fixtures, a payment of $50 thereon, and the execution of notes for $65, payable in installments, and retaining title in the seller until paid for; that the fountain was in good order for a secondhand fountain, and that its rental value was about $20 per month and that demand had been made on appellant before suit was brought for its return. The defendant pleaded, and his evidence tended to support the plea, that when he purchased the soda fountain Colias represented that it was in good order and ready for use, and that they would set it up and start it to running for him; that they did set it up and start it to running, but that it was no good, leaking in many of its valves and in its syrup cup, and could not be used that the day after it was set up appellant informed appellees that it was of no use to him in its condition, and asked that the fount and fixtures be taken back and his money returned to him, and he still tendered the fount and fixtures conditioned on the return of payments he had made; and further, that he was not acquainted with the soda water business, knew nothing of soda founts, nor how to use them, and relied solely on the representations of Colias as to the condition, etc., of the fount.

Charles J. Dougherty and Francis M. Lowe, for appellant.

McCrossin & Garrett, for appellee.

DOWDELL J.

This cause was tried by the court below without the intervention of a jury, and judgment was rendered in favor of the plaintiff, from which the defendant appeals. The bill of exceptions recites at its conclusion as follows: "The above contains all of the testimony offered upon above trial. And the court upon consideration of all the evidence gave judgment for the plaintiff for the possession of the articles sued for, and taxed the defendant with the costs. To this action the defendant then and there objected, and the court overruled his objection, and the exception was duly and legally noted."

It may be questioned whether this is a sufficient reservation of an...