Stewart v. Riley & Johnson

• Decision Date: 07 November 1914
• Docket Number: 533
• Citation: 189 Ala. 519,66 So. 488
• Court: Alabama Supreme Court
• Parties: STEWART v. RILEY & JOHNSON.

66 So. 488

189 Ala. 519

STEWART v. RILEY & JOHNSON.

No. 533

Supreme Court of Alabama

November 7, 1914

Appeal from Law and Equity Court, Covington County; W.L. Parks Special Judge.

Action by Riley & Johnson, a partnership, against B.C. Stewart, for deceit in the sale of horses, and assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6 of Acts 1911, p. 450. Affirmed.

The counts of the complaint which went to the jury were:

(A) Plaintiffs claim of defendant $350 damages for deceit in the sale of two horses by defendant to the said firm of plaintiffs which defendant at the time of said sale knew to be unsound.

(B) Same as to one horse.

(E) Plaintiffs claim of defendant the sum of $300 damages for a breach of warranty in the sale, trade, or exchange by defendant to the said firm of plaintiffs on, to wit, December 23, 1910, of two horses, which defendant then and there warranted to be sound, when in fact said horses were not sound, but that one of said horses was substantially blind in each eye, and the other said horse was crippled or cut on one of his front legs.

(F) Breach of warranty in the sale of a blind horse.

(G) Breach of warranty in the sale of a crippled horse.

(H) Assumpsit for $50 claimed to be the balance due in the sale of an automobile, and not included in the payment as agreed.

The appellant complains of error in overruling its objection to the following question to the witness Johnson, "Now, Mr Johnson, what did you find the proximate age of the mare to be when she reached Andalusia?" and the answer of the witness that the mare was not far from 12 years of age; also that the court erred in overruling objections of defendant to the following question to the witness Johnson: "Did you have that check in your pocket?" also in sustaining objection of plaintiff to defendant's question to witness Knox as to how much land there was. Also overruling the objection of defendant to the question asked by plaintiff to the same witness: "Do you know the reasonable market value of these horses at the time you saw them, just after that trade, in the condition they were then in?" The other matters sufficiently appear.

J Morgan Prestwood and Henry Opp, both of Andalusia., for appellant.

Allen Crenshaw and A. Whaley, both of Andalusia, for appellee.

ANDERSON C.J.

The counts upon which this case proceeded are not upon the theory of a rescission of the trade as to the automobile, but for deceit and a breach of warranty as to the two horses traded as a part of the purchase price of the machine, with one count for $50, claimed to be omitted from the check given the plaintiffs by the defendant.

While the breach of warranty or deceit is not based on any representations as to the age of the horses, yet the age of same was a circumstance to be considered by the jury in determining the extent of the unsoundness and the extent to which it would affect or impair the value of the animals.

There is no merit in the objection of the defendant as to whether or not one of the plaintiffs...