Millsap v. Wolfe

• Decision Date: 07 June 1911
• Citation: 1 Ala.App. 599,56 So. 22
• Parties: MILLSAP v. WOLFE.
• Court: Alabama Court of Appeals

56 So. 22

1 Ala.App. 599

MILLSAP v. WOLFE.

Court of Appeals of Alabama

June 7, 1911

Rehearing Denied June 14, 1911.

Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.

Action by Jeff Millsap against O. M. Wolfe. From a judgment for defendant, plaintiff appeals. Affirmed.

The first count was upon a bill of exchange the second count was on a bank check alleged to have been countermanded by the defendant, and the third count was upon the count stated. The pleas were as follows: The general issue. (2) That the amount sued for was the purchase price of a certain horse that defendant bought of plaintiff, which horse the plaintiff warranted to be sound, when in fact the said horse was unsound, to the damage of defendant in the sum of $162.50, which he offers to recoup or set off against the demand of the plaintiff. The third, that at the time this action was commenced plaintiff was liable to or indebted to the defendant in the sum of $162.50 damages, for the breach of a warranty in the sale of a horse to him on the 25th day of March, 1910, which plaintiff warranted to be sound, when in fact said horse was not sound, but was unsound, and defendant offers to set off the same against the claim of the plaintiff, and claims judgment for any excess. (4) Same as 2 with the exception of the additional allegation that the defendant relied on the warranty, and purchased said horse on the faith thereof. (5) Alleges the same facts as true as to the purchase of the horse, with the further allegation that plaintiff represented the horse to be sound, and on the faith of said representation defendant purchased the horse, and it is averred that said representation was false and untrue, and that said horse was not sound, but was unsound, and by reason of such false representation plaintiff was damaged in the sum of $162.50 which he offers to set off. (6) Same as 5, with the additional allegation that the horse was sick and unsound and died from said sick and unsound condition within a few days after it was delivered to the defendant. (7) Same as 2 with the additional allegation that on account of its sick and unsound condition the horse died within a few days after its delivery to the defendant and without defendant having received any benefit from it. Demurrers were interposed to these pleas raising the matters discussed in the opinion.

The assignments of error referred to in the opinion are as follows: (11) "The court below erred in sustaining the objection of the defendant to the following questions propounded by plaintiff to witness Reuben Millsap: In any of your conversations with reference to that horse, did you ever warrant that horse?" (12) "Same witness: Did he, the defendant, in that conversation with you claim that you had warranted or guaranteed the horse or make any complaint of that kind?" (13) "Same witness: Did defendant in that conversation make any complaint as to a breach of warranty as to the soundness of that horse or state to you in that conversation that you had represented to him that the horse was sound or unsound?" (14) "Same witness: In this conversation you had with defendant, on his visit to Evergreen in April following this trade, did he at that time say anything about you having warranted this horse to be sound, when as a matter of fact, he was unsound?" (15) "Same witness: In this conversation with defendant, did he then complain of any false representation on your part as to the soundness or unsoundness of that horse?" (16) "Did this defendant in the conversation referred to, or any other conversation, make any claims to you of false representations you had made with reference to the soundness or unsoundness of this horse?" (23) "Overruling objection of plaintiff to the following question propounded by defendant to the witness Sam Sowell: In your opinion, Mr. Sowell, what was the matter with that horse?"

Hamilton & Crumpton, for appellant.

Leigh & Leigh and E. L. McMillan, for appellee.

DE GRAFFENRIED, J.

1. A warranty, in the sale of a chattel, is a collateral undertaking on the part of the seller as to the quality of or title to the subject of the sale. It may be express or implied. It is express when made so by the agreement of the parties; implied when the law derives it by implication or inference from the nature of the transaction or the relative situation of the parties. 30 Am. & Eng. Ency. Law, pp. 128, 129.

As a warranty, express or implied, is a contract, the good faith of the seller in making it is not material. In actions for breach of warranty, the only questions are: Was there a contract of warranty? If so, has there been a breach? And if so, the amount of damages suffered by the purchaser thereby. Scott v. Holland, 132 Ala. 389, 31 So. 514.

It is not necessary, as a condition precedent to a right of action for the breach of a warranty, that the article shall be returned to the seller and the seller be put in statu quo, unless the contract, by its terms, requires the return of the article if it should prove not to be as warranted. Unless the contract requires the return of the article, or some other express condition, by the terms of the contract, is attached to it, the purchaser may retain it and sue for his damages for the breach of the warranty and the measure of his damages is ordinarily, in such case, the difference between the value of the article as it was warranted to be and its actual value.

The purchaser may, however, upon a discovery of a breach of the warranty, repudiate the contract of sale and sue for his damages, which is, ordinarily,...