Thomas v. Irvine

• Decision Date: 02 February 1911
• Parties: THOMAS v. IRVINE.
• Court: Alabama Supreme Court

55 So. 109

171 Ala. 332

THOMAS v. IRVINE.

Supreme Court of Alabama

February 2, 1911

Rehearing Denied May 5, 1911.

Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.

Action by Frank Irvine against J. B. Thomas in assumpsit on the common count. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The third plea is as follows: "Comes the defendant, and pleads, by way of set-off to said complaint exhibited against him, that the plaintiff is indebted to him in the sum of $150, for that on or about the 9th day of January, 1909, the plaintiff sold, bargained, or exchanged with defendant one certain mule, which he then and there alleged to be sound but defendant alleges that the said mule was not sound, but was at the time diseased and unsound, and within a short time after the sale or exchange died of such disease, the exact nature of which is unknown to the defendant, to the damage of defendant $150, which he offers to set off against the plaintiff's demand." Plea 2 alleges a verbal warranty of soundness, and that the mule was not sound, but subject to periodic and violent attacks of colic, from which he died.

The first replication to pleas 2 and 3 is as follows "Plaintiff says that at the time the said mule was sold or bargained to the defendant, and on, to wit, the 9th day of January, 1909, a written contract of sale was made and entered into by and between plaintiff and defendant, and that said contract embodied all the agreements between the parties, and there was no guaranty of soundness of any kind set out in said written agreement." Replication 2, to pleas 2 and 3: "Plaintiff says: That at the time of the sale, barter, or exchange of said mule, or the team of mules of which the mule in question was one, the plaintiff executed to the defendant the following contract in writing: 'This is to certify that I have this day sold to J. B. Thomas two mules, about 11 or 12 years old, the consideration being the transfer of title to me of one bay and one brown mare, and the payment to me of $25 by J. B. Thomas. I hereby certify that there is no lien or debt due to any one on the above-mentioned mules, and they are my property. Florence Ala., Jan. 9, 1909. [ [Signed] F. W. Irvine.' That said written agreement constituted all the agreements made by the plaintiff."

The defendant offered to prove by himself as to verbal representations made or guaranty of soundness alleged to have been made by the plaintiff to the defendant relative to the mules, which the court refused to let him do; it appearing that a contract similar to the one set up in the replication was made and executed to Irvine by Thomas relative to the mares.

Paul Hodges, for appellant.

C. E Jordan, for appellee.

DOWDELL C.J.

The first assignment of error relates to the action of the court in sustaining a demurrer to defendant's fourth plea. This plea is an attempt to set up, as a set-off to plaintiff's claim, damages because of the unsoundness of a mule sold to defendant by plaintiff, without averring any warranty of soundness, or of fraud practiced in the sale....