Maples v. Douglass

• Decision Date: 16 December 1920
• Docket Number: 8 Div. 270
• Citation: 87 So. 585,205 Ala. 94
• Parties: MAPLES v. DOUGLASS.
• Court: Alabama Supreme Court

87 So. 585

205 Ala. 94

MAPLES v. DOUGLASS.

8 Div. 270

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Action by R.C. Douglass against I.L. Maples. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Betts &amp Betts, of Huntsville, for appellant.

R.E. Smith, of Huntsville, for appellee.

SOMERVILLE J.

Where the vendee of a chattel, being so entitled, rescinds his purchase because of a defect in the chattel, with an accompanying tender of the chattel to the vendor, or offer to restore it, if actual tender is impracticable, the effect is to revest the title of the chattel in the vendor, and to entitle the vendee to a recovery of the consideration with which he had parted, and the refusal of the tender or offer does not change its effect. The vendee may in the latter case abandon the property or retain it in his custody, and if he retain it "he is considered merely the bailee of the seller, and that relation becomes at once the *** measure of his rights and responsibilities." Hayes v. Woodham, 145 Ala. 597, 40 So. 511, and cases therein cited; Smith v. Thomas, 201 Ala. 442, 78 So. 820.

The third count of the complaint sets forth the purchase of a mule by plaintiff from defendant for $175, with the stipulation that, if there were any defects in the mule, defendant would repay the price to plaintiff upon his return of the mule, and it is alleged that there was a defect in the mule, in that it was "hipped," and that plaintiff "has tendered said mule to said defendant, and demanded from him said sum of $175, which defendant has failed and refused to pay," etc. A demurrer to this count aptly challenges its sufficiency, in that it "does not show that plaintiff, after his alleged tender of the mule, holds himself in readiness to deliver the mule."

Where a tender of chattels pursuant to the terms of the contract has the effect, ipso facto, of discharging the contract or of restoring the parties to their original position with respect to the consideration with which each has respectively parted, including the chattels thus tendered, it has always been held in this state, and by the authorities generally, that in a suit upon the original obligation, or for the recovery of the consideration which has reverted to the plaintiff by virtue of his tender, it is not necessary to either aver or prove a readiness at all times, or at any subsequent time, to deliver the thing so tendered. And this is equally true, whether the effect of the tender is set up in a complaint or in a plea. Garrard v. Zachariah, 1 Stew. 272; Armstrong v. Tait, 8 Ala. 635, 42 Am.Dec. 656; Carmack v. McKinney, 7 Ala.App. 408, 62 So. 289; 20 R.C.L. 649, § 31; 38 Cyc. 169 (iv).

On the other hand, where the tender does not ipso facto discharge the obligation, or change the relation of the parties, and where there remains a continuing obligation to keep and deliver, the tender, to be availing, must be kept good, and the pleader must aver a continuing readiness to deliver. Authorities supra. It is to this class of tenders of chattels that section 5334 of the Code, and form 36, for pleas of tender (Code, p. 1202), are applicable. Those legislative provisions were intended to prescribe a rule of pleading only, and not to change any rule of substantive law. In accordance with this view, it was specifically held in Curjel & Co. v. Hallett Mfg. Co., 198 Ala. 609, 619, 73 So. 938, 943, that--

"The necessity of keeping a money tender good by keeping on hand the specific money tendered, or its equivalent, does not apply to the tender of commodities by a seller to a buyer."

In that case the obligation of the seller was discharged, and the liability of the purchaser for damages was fixed, by the seasonable tender of the goods. See,...