Security Finance Co. v. Kelly's Tire Shop

• Decision Date: 20 October 1927
• Docket Number: 6 Div. 971
• Citation: 114 So. 298,216 Ala. 642
• Parties: SECURITY FINANCE CO. v. KELLY'S TIRE SHOP et al.
• Court: Alabama Supreme Court

114 So. 298

216 Ala. 642

SECURITY FINANCE CO. v. KELLY'S TIRE SHOP et al.

6 Div. 971

Supreme Court of Alabama

October 20, 1927

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action on promissory notes by the Security Finance Company against the Kelly Tire Shop and E.C. Kelly, doing business as Kelly Tire Shop. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Notes being given for radio to be thereafter delivered for purposes of sale, there was implied warranty that article was suited to purpose.

The following requested charges were refused to plaintiff No. 3. The court charges the jury that, if anything of value did pass to Kelly Tire Company or Mr. Kelly, the defendant, then the plaintiff is entitled to recover on the notes sued on.

No. 4. The court charges the jury consideration and basis of the three notes would mean any value received by the defendant for notes signed by the defendant, and, if he did (the defendant) receive any value, however, small, and such value received was retained by the defendant, then the notes were duly executed for a valuable consideration, and, if the evidence reasonably satisfies you such is the facts, your verdict must be for the plaintiff.

These charges were given for defendant:

(21) When goods are sold by description or without an opportunity of the purchaser to see them and inspect them, there is in the contract of sale an implied warranty that the goods delivered shall answer to the description, and there is also an implied warranty that the goods shall be merchantable; the term "merchantable" meaning salable in the market into which they are sold.

(22) Where a manufacturer or a dealer contracts to supply an article, which it manufactures or produces, or in which it deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied.

(24) In the sale of merchandise by one person or concern to another the law implies that the seller warrants such article to be merchantable, and, if a person or concern sells an article which is not merchantable, the seller cannot under the law of this state recover of the purchaser the price thereof, and, if notes are given for the purchase price and the notes sold after maturity, then the purchaser of such notes cannot recover on the notes.

Pinkney Scott, of Bessemer, for appellant.

Huey & Welch, of Bessemer, for appellees.

BOULDIN J.

The action is upon promissory notes by an indorsee against the maker. Defendant pleaded "in short, by consent, the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of action, to have effect as if so pleaded, and with leave to the plaintiff to give in evidence any matter which, if well pleaded, would be admissible in reply to such defensive matter, to have effect as if so pleaded." Under this plea the evidence of failure of consideration, or breach of warranty and rescission, was properly admitted. Moore v. Williamson, 210 Ala. 427, 98 So. 201; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897; Austin v. Hunter, 193 Ala. 163, 69 So. 113; Converse Bridge Co. v. Collins, 119 Ala. 534, 24 So. 561.

In Hirschfelder v. Mitchell, 54 Ala. 419, cited by appellant, the case was tried on the "plea of the general issue in short by consent." Page 420. The court held: "Only the general issue was pleaded." Here the plea is expressly extended to matters which may be specially pleaded. No express consent to this form of pleading need appear in...