Moses v. Katzenberger

• Decision Date: 21 May 1888
• Citation: 84 Ala. 95,4 So. 237
• Parties: MOSES v. KATZENBERGER ET AL.
• Court: Alabama Supreme Court

4 So. 237

84 Ala. 95

MOSES v. KATZENBERGER ET AL.

Supreme Court of Alabama

May 21, 1888

Appeal from circuit court, Colbert county; H. C. SPEAKE, Judge.

This suit was brought by the appellees S. Katzenberger & Sons against A. H. Moses, the appellant, and sought the collection of the money for the purchase price of a horse, buggy, and wheels sold by the plaintiffs to the defendant. The defendant, by his various pleas, set up false and fraudulent representations made by the plaintiffs as to the age and soundness of the horse; and return in a reasonable time of the horse; his refusal to receive the buggy and wheels; and the entirety of the contract. The general nature of the evidence, and the objections thereto, and the merits and demerits respectively of the charges given and refused appear in the opinion. Charge 6, given by the court, and referred to in the opinion, is as follows: (6) "If Katzenberger, at the time of the sale of the horse, stated to Moses that the horse was only seven years old, and made the statement as a matter of opinion, this constitutes no warranty on the part of Katzenberger, and no fraud that would vitiate the contract."

Emmett O'Neal and Wats & Son, for appellant.

J B. Moore and James Jackson, contra.

SOMERVILLE J.

1. The affidavits, to which objection was taken by appellant, were admissible as a part of the correspondence between the parties to the suit. They were inclosed in letters written by the plaintiffs to defendant, and their contents were referred to by defendant in the rendition of his testimony on the trial. They were admissible on the same principle that a conversation between the parties would have been, which embodied the same averments, not as evidence of the facts stated in the affidavits, which could only be proved by the witnesses themselves, but as a part of the res gest , which in this case is the correspondence itself.

2. There is one phase of the evidence in this case which tends to show that, irrespective of the questions raised as to the alleged fraudulent representations made by the plaintiffs regarding the horse and vehicle purchased by defendant, and defendant was indebted to the plaintiffs in the sum of $15, for which they were entitled to recover. This was claimed to be due for the set of buggy wheels purchased and shipped at the request of defendant, and for this item he nowhere denies his liability except upon the theory that the purchase of the horse, vehicle, and wheels was but one single transaction. It is not claimed that there was any fraud in the sale of the wheels if it was a separate and distinct purchase as alleged by the plaintiffs. The following charges requested by the defendant, viz., charges number 1, 6, and 9, entirely ignore this liability by affirming the defendant's right to a general verdict in his favor upon the facts hypothesised in these respective charges. For this reason, apart from other considerations, these charges were properly refused.

3. The present action is one for deceit, founded on alleged false representations made by the plaintiffs to the defendant as to the age and soundness of a horse sold by the former to the latter. The plaintiffs' counsel, upon the trial expressly abandoned in his argument at the bar all right to recover based upon the idea of a mere warranty. This eliminated the question...