Selman v. Moore

• Decision Date: 31 October 1944
• Docket Number: 8 Div. 416.
• Parties: SELMAN et al. v. MOORE.
• Court: Alabama Court of Appeals

19 So.2d 548

31 Ala.App. 534

SELMAN et al. v. MOORE.

8 Div. 416.

Alabama Court of Appeals

October 31, 1944

Appeal from Circuit Court, Marshall County W.J. Haralson, judge.

M.F Lusk, of Guntersville, for appellants.

Mack Killcrease, of Albertville, for appellee.

CARR Judge.

There are two counts in the complaint, detinue and on a promissory note. As we construe the record, appellants have abandoned all insistences presented by the detinue count so far as concerns this appeal. It will be so treated.

The promissory note, the basis for the second count of the complaint, was given to appellants by appellee for the purchase price of a mule. To the count declaring on this note appellee filed special pleas in which the position is asserted that appellants warranted the mule to be sound and free from disease and defects, when as a matter of fact the mule was sick or diseased at the time of the sale and the execution of the promissory note for the purchase price thereof; that these facts were known to appellants; that shortly thereafter, as a result of said sickness or disease the mule died.

To these pleas the appellants interposed a general replication or denial, and in addition filed a special replication as follows: "2. That at the time of the alleged sale and warranty of the mule mentioned in said plea it was understood and agreed between plaintiffs and defendant that in case anything should prove to be the matter with the mule plaintiffs were to have the privilege of making it good by taking back the mule and giving defendant another mule of equal value to take its place, and these plaintiffs allege that when defendant complained several weeks after the sale that said mule had been sick, plaintiffs by and through their authorized agent then and there offered defendant another mule of equal value to take the place of the first mule, which proposition the defendant refused to accept, and because of these facts plaintiffs say they are not liable for any damages in this case."

The trial court gave the following written charge at the instance of appellee: "The Court charges the jury that unless you believe from a fair consideration of all the evidence that the plaintiff offered another mule to the defendant of equal value of the one that was sold by plaintiff to defendant then you cannot find a verdict in favor of plaintiff."

It is urged here that in giving this charge the court fell into error. We are in accord with this view and will undertake to demonstrate the reasons for our conclusions.

The evidence is not free of controversy in many particulars concerning the agreement and understanding of the parties relating to the mule trade. We will not discuss the tendencies of the evidence "pro and con" pertinent thereto, but it appears clearly that a disputed issue of facts arose from the testimony on the averments of appellee's pleas. The general replication put in issue the truth of all...