Kern v. Friedrich

• Decision Date: 20 March 1930
• Docket Number: 6 Div. 366.
• Citation: 220 Ala. 581,126 So. 857
• Parties: KERN v. FRIEDRICH.
• Court: Alabama Supreme Court

126 So. 857

220 Ala. 581

KERN v. FRIEDRICH.

6 Div. 366.

Supreme Court of Alabama

March 20, 1930

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Rudolph Kern, doing business as Dainty Maid Bakery and Delicatessen, against Ed Friedrich. From a judgment for defendant, plaintiff appeals. Affirmed.

Fort Beddow & Ray, of Birmingham, for appellant.

Drennen & Burns, of Birmingham, for appellee.

BROWN J.

The defendant, appellee here, sold to the plaintiff "one (1) D-150 Delphos Ice Machine complete," stipulating in the contract: "Machine to be placed in Bakery and connected to Ice Cream Box, Service Box, Vegetable Box, Bakery Service Box, Ice Water Tank, Display Case, Candy Box, all piping and connections to be made, and all exposed lines covered also covered with linen and painted white. Machine to be charged with ammonia and to operate in thermostat, all work to be done by skilled workmen in high class manner." "Temperature to be satisfactory to each box as per proposal. Machine with motor and all necessary parts to function properly; and operate on thermostat"; plaintiff agreeing to pay therefor $2,750, of which $675 was paid on delivery of the machine, the balance to be paid in designated installments.

The plaintiff sued for a breach of the contract, alleging in count 5 that it was breached, in that "the machine, with motor and all parts necessary to function properly and operate on thermostat, would not function properly and did not correctly operate on thermostat" to plaintiff's damage.

In another count, the sixth, it was alleged that the contract was breached in that "the temperature provided by said machine in the several boxes in said equipment was not satisfactory to plaintiff, in that said temperature so provided in each of said boxes did not preserve and protect the commodities of plaintiff's stock in trade from deterioration, decay and becoming unwholesome," with proximately resulting damage.

To these counts, on which the case was tried, the defendant filed the plea of the general issue and several special pleas, all of which, except the general issue and a plea of set-off, were withdrawn before the case went to the jury. As to the plea of set-off, the court directed a verdict against the defendant.

The jury returned a verdict for the defendant on the issues presented by said counts, and the plea of the general issue and assignments of error predicated on charges relating to the measure or element of damages recoverable, and rulings on evidence relating solely to damages, if error, were innocuous. Loveman v. B. R., L. & P. Co., 149 Ala 515, 43 So. 411; Randle v. B. R., L. & P. Co., 169 Ala. 314, 53 So. 918.

So also the rulings of the court on the demurrers to defendant's pleas that were withdrawn, or as to which the affirmative charge was given against defendant, and the replications thereto, if error, were without injury. Southern Rwy. Co. v. Hyde, 164 Ala. 162, 51 So. 368.

Though it be conceded that an exception may be properly reserved to the oral charge of the court for failure to instruct the jury as to an element of damages claimed and recoverable, still such failure is without injury, where the verdict is against the plaintiff on his right to recover at all.

The plaintiff's evidence tended to show that the machine and equipment were not properly installed, and would not operate on thermostat and supply proper refrigeration to preserve the commodities placed in the different compartments or receptacles, in consequence of which such commodities deteriorated and became unfit for use or sale.

The countervailing evidence offered by the defendant tended to show proper installation and that the failure of the machine to properly function resulted from its negligent use, or from the pernicious intermeddling of the plaintiff or his employees. On the whole, the case was one for jury decision, and, after careful consideration of the evidence, we are not able to affirm that the verdict of the jury was contrary to the weight of the evidence. The motion for new trial, in so far as it is predicated on the ground that the verdict was contrary to the weight of the evidence, was therefore overruled without error. Cobb v. Malone, 92 Ala. 630, 9 So. 738.

The grounds of the motion based on the rulings on evidence are too general to put the court in error for disregarding them. The other grounds in respect to the rulings on the pleas and replications and the giving of charges denying the right of plaintiff...