O'Rear v. Richardson

• Decision Date: 22 April 1919
• Docket Number: 6 Div. 481
• Citation: 17 Ala.App. 87,81 So. 865
• Parties: O'REAR v. RICHARDSON.
• Court: Alabama Court of Appeals

81 So. 865

17 Ala.App. 87

O'REAR v. RICHARDSON.

6 Div. 481

Court of Appeals of Alabama

April 22, 1919

Rehearing Denied May 13, 1919

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

Suit by Thomas L. Richardson against W.G. O'Rear. From a judgment for plaintiff, defendant appeals. Affirmed.

Leith &amp Powell, of Jasper, for appellant.

J.M Pennington, of Jasper, for appellee.

BRICKEN J.

Several years ago Richardson sold O'Rear two jennets for $65 cash and a promissory note for like amount due December 1, 1911. We learn this due date from the court's oral charge, and not from the pleadings, evidence, or briefs of counsel. The note not being paid when due, the appellee instituted suit thereon, long after the due date, and the cause coming on to be tried, the defendant alleged that he had been deceived, defrauded, and damaged, because, as he claimed, the plaintiff at the time of the sale "guaranteed" that these two specimens of the equine family were then "in fold" by a horse and would bring forth mule colts, and that the sire fees for the services rendered by the horse had been paid, all of which the defendant claims was untrue, in that the said animals of feminine gender were then and there more or less impregnated by a "jack," and therefore brought forth "jennet" colts, and, further, that the sire fees were unpaid, but, on the contrary, had to be paid by the defendant, to which, it seems, neither the plaintiff nor the jack made objection.

The term "in fold" so frequently used in the record and in briefs of counsel we construe to mean "in foal," for in the connection in which this term is so frequently used it could mean nothing else and would be unintelligible for "in fold" means "to wrap up or cover with folds;" "to inclose;" "to clasp with the arms;" "to embrace"--all of which is manifestly inapplicable and impossible to be consummated by stallions or jacks with jennets. While "foal," according to recognized authorities, means "to bring forth young," "said of animals of the horse family," "to bring forth, as a colt or filly," "said of a mare or a she ass," therefore we may safely conclude that, where the record and briefs of counsel allude to the particular jennies as being "in fold," it really means they were in foal by a jack or a stallion, as the case may be. And for like reasons we must hold that the term "jennies," as used in the record and in briefs of counsel quite frequently, does not apply to machines used in cotton mills for spinning many threads etc., as contended by counsel for plaintiff, but must be taken to mean the female of an ass. In fact, this definition is used for the word "jenny" by several of the recognized authorities. In the case here cotton gin machinery is not involved, but, to the contrary, the cause of action is a promissory note...