McCoy v. Prince

• Decision Date: 24 November 1914
• Docket Number: 482
• Parties: McCOY v. PRINCE.
• Court: Alabama Court of Appeals

66 So. 950

11 Ala.App. 388

McCOY v. PRINCE.

No. 482

Court of Appeals of Alabama

November 24, 1914

Appeal from Circuit Court, Winston County; J.J. Curtis, Judge.

Detinue by L.F. Prince against Robert McCoy. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The facts sufficiently appear in the opinion. The following charges were given at plaintiff's request:

(2) I charge you, gentlemen, that unless McCoy rescinded the trade within a reasonable time after the discovery of the defect in the mare, if there was a material defect, and offered to return the mare to Prince, then your verdict in this case must be for the plaintiff, and the burden of proof on the question of rescission and tender back is on defendant.

(1) I charge you that the burden of showing breach of warranty in this case is on defendant, and unless you are reasonably convinced by the evidence in the case that Prince warranted the mare to be sound and that warranty was a part of the trade, or an inducement to cause McCoy to part with the mule, and that the warranty was materially breached, and the mare was materially unsound, and that McCoy was thereby materially injured, then your verdict must be for plaintiff.

(4) If you are reasonably convinced from the evidence in this case that any witness or witnesses willfully and knowingly swore falsely to any material facts in the case, then, in your discretion, you may disregard all that witness or witnesses said in the case.

(5) If there was no warranty of the mare as to soundness, and if there was no fraud in the trade, then your verdict must be for plaintiff.

(6) If the mule was the property of Prince, if it was Prince's mule at the time McCoy took it from where Prince had hitched it, then your verdict should be for plaintiff.

(7) You may look, and it is your duty to look, to the demeanor of the witnesses who testified, their opportunity to hear, see, and know as applied to the facts of the case, and weigh the evidence and give it all such weight and credence as you shall see fit and proper.

(9) If McCoy relied solely upon his own judgment in making the trade, the plaintiff should recover in this case.

The following charges were refused to defendant:

(1) If the jury believe from the evidence that at the time of the exchange of mare and mule between Prince and McCoy, or shortly previous thereto, Prince told McCoy that the mare was sound so far as he knew, then there must be a verdict in favor of defendant.

(2) If the jury are reasonably satisfied from the evidence that Prince told McCoy that the mare was sound at the time of the trade or immediately preceding it, there will be a verdict for defendant McCoy.

(5) If the trade between McCoy and Prince was brought about by misrepresentations made by Prince, then such trade was void, and McCoy had a right to get the mule, and Prince cannot maintain this action.

(6) If the trade between McCoy and Prince was brought about by representations by Prince to McCoy that the mare was sound, then that avoids the trade, and you will find a verdict for defendant.

(9) If, in a trade for a mare, the person trading for the mare states to the person from whom he obtains the mare that he desires to get the mare for a certain specific purpose and that such purpose is the motive for the trade, then the person trading the mare does so with the implied warranty that the mare is fit for that purpose.

(10) The lameness of the mare before she was traded to McCoy being admitted by the evidence of defendant, McCoy, and shown by witnesses, the defendant, McCoy, will be entitled to a verdict in his favor if Prince told McCoy at the trade that the mare was sound.

(11) Plaintiff, Prince, testified, and the evidence tends to show, that the mare was lame while in Prince's possession, and, if Prince made the trade with McCoy by telling McCoy the mare was sound, Prince cannot recover a verdict in this case, and your verdict will be for defendant.

(12) All contracts brought about by misrepresentation, are void, and confer no rights on the person making such representations.

(15) If the jury are reasonably satisfied from the evidence in the case that Prince warranted the mare to be sound and she was lame, then plaintiff cannot recover.

Ray & Cooner, of Jasper, for appellant.

Mayhall & Stagner, of Haleyville, for appellee.

THOMAS J.

The buyer of personal property may rescind the contract and recover the consideration paid for either fraud and deceit upon the part of the seller operating to induce the purchase or for a breach of a warranty made by the seller, whether express or implied. It is true that in the case of Hafer v. Cole, 176 Ala. 247, 57 So. 757, our Supreme Court have declared that, "by the weight of authority, the vendee cannot, in the absence of fraud or an agreement giving him the right, rescind an executed contract of sale for a mere breach of warranty; his remedy in such cases being on the warranty"; yet, a decision upon this proposition was not necessary to the disposition of the case there under consideration, as expressly there appears; consequently, we regard the statement quoted as mere dicta, and as not being intended to overrule the previous decisions of that court establishing a doctrine contrary to that declared in the excerpt quoted to be sustained by the weight of authority. This contrary doctrine was established by our Supreme Court as far back as Burnett v. Stanton, 2 Ala. 181, which has since come frequently under review and been repeatedly reaffirmed without dissent. In Thompson v. Harvey, 86 Ala. 521 5 So. 826, our Supreme Court said in support of it:

"Whatever may be the conflict in the authorities, it may be regarded as settled in this state that the remedy of a buyer, to avoid a contract for the breach of a warranty, is not restricted to cases where the warranty is fraudulent. This rule was settled long ago as the decision in Burnett v. Stanton, 2 Ala. 181, in which it was said: 'An offer to return the chattel in a reasonable time, on the breach of a warranty, or where fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy to an offer accepted by the seller, and the contract is rescinded.' "

See, also, 30 Am. & Eng.Ency.Law (2d Ed.) 190, 191, note 2; Jemison v. Woodruff, 34 Ala. 146; Eagan Co. v. Johnson, 82 Ala. 237, 2 So. 302; Hodge & Williams v. Tufts, 115 Ala. 375, 376, 22 So. 422; Millsapp v. Woolf, 1 Ala.App. 604, 56 So. 22.

What is a reasonable time within which to rescind in any particular case is ordinarily a question for the jury (Millsapp v. Woolf, supra), to be determined, however, in the light of the well-settled principle that, if the purchaser would disaffirm the contract, the law requires him to act promptly and to restore or offer to restore, what he has received under it at the earliest practicable moment after the discovery of the cheat, unless, of course, the thing received is absolutely worthless, or unless its restoration has become or been rendered impossible by reason of the conduct or default of the other party. Stephenson v. Allison, 123 Ala. 447, 26 So. 290; Hafer v. Cole, 176 Ala. 247, 57 So. 757; Hodge & Williams v. Tufts, 115 Ala. 375, 22 So. 422; Young v. Arntze, 86 Ala. 116, 5 So. 253; Pacific Guano Co. v. Mullen, 66 Ala. 582; Eastern G.R. Co. v. Chapman, 140 Ala. 440, 37 So. 199, 103 Am.St.Rep. 58; Conner v. Henderson, 15 Mass. 319, 8 Am.Dec. 103.

If, after the discovery of the fraud or breach of warranty entitling him to rescind, the purchaser uses and deals with the property as his own, or does other act inconsistent with his right to rescind, then he is held to have elected to ratify the contract and to have waived his right to rescind ( Hodge & Williams v. Tufts, 115 Ala. 376, 22 So. 422); and, in such event, the only remedy left him for the redress of the wrong of the seller is either a suit against such seller for damages (ex delicto, if there was fraud or deceit, and ex contractu, if there was merely a breach of warranty--Scott v. Holland, 132 Ala. 390, 31 So. 514--which actions may, since the Code of 1907, § 5329, be joined); or, if sued by the seller for the purchase price, an abatement pro tanto of the recovery by a plea of recoupment or counterclaim (Jemison v. Woodruff, 34 Ala. 146; Ward v. Reynolds, 32 Ala. 384; Brown v. Freeman, 79 Ala. 406; Eagan v. Johnson, 82 Ala. 233, 2 So. 302; 24 Am. & Eng.Ency.Law, 1157-1161; 30 Am. & Eng.Ency.Law, 195; 14 Am. & Eng.Ency.Law, 167).

Furthermore even when the purchaser offers to restore the property and demands of the seller a rescission of the contract, and does so promptly and unreservedly, immediately upon...