Thompson v. Harvey

• Decision Date: 12 April 1889
• Citation: 86 Ala. 519,5 So. 825
• Parties: THOMPSON ET AL. v. HARVEY.
• Court: Alabama Supreme Court

5 So. 825

86 Ala. 519

THOMPSON ET AL. v. HARVEY.

Supreme Court of Alabama

April 12, 1889

Appeal from city court of Mobile; O. J. SEMMES, Judge.

This was an action of detinue, brought by the appellee, Seth Harvey, against the appellants, J. U. and N. Q. Thompson, and sought to recover certain described personal property. The basis of the right of the plaintiff to recover, and out of which the controversy grew, was an exchange of property by the parties. Among other property given to the plaintiff by the defendants in exchange for the property now sued for was a horse, and the chief contention in the suit is that the horse was warranted to be sound, and that this warranty was broken, the horse being at the time of the exchange unsound. There was testimony on behalf of the plaintiff that Thompson said, in reference to the horse, that, if he was not all right, and just as he represented him, he would either rue the trade and give back the property, or take him back and give him, the plaintiff, the appraised value of him, which was one hundred dollars. This was the warranty, and upon the plaintiff discovering its breach he offered to rue the trade with the defendants, which they refused to do, and hence the action brought for the recovery of the property traded to the defendants for the horse and other property. The other facts and evidence of the case, as shown by the bill of exceptions are sufficiently set out in the opinion of the court.

Upon the evidence, as above stated, and as is shown by the opinion, the court, of its own motion, charged the jury as follows: "If the jury believe from the evidence that there was a special warranty made by the defendants to the plaintiffs at the time of making the trade that the horse in question was sound, and was an American raised horse, which proved to be untrue, then the plaintiff could recover in this action, and the plaintiff in this action was not required to examine said horse, but could rely on said warranty, if such a one was made; that although the defects in said horse relied on in this case may have been plain and perceptible yet, if the plaintiff relied on a special warranty, he could do so, and now maintain this action, if you believe that said special warranty has been broken." The defendants excepted to this charge. The bill of exceptions then states that " the court further charged the jury in full in explanation of the law applicable to the case, to which no exception was taken." The defendant then asked the court to give the following charge, and duly excepted to the court refusing to give the same: "If the jury believe from the evidence that the defect, spoken of and relied on, in the horse, by which to procure a rescission of the trade in this case, was an open and perceptible defect, so that the plaintiff could have seen it on examination, the doctrine of caveat emptor would apply, and the plaintiff could not recover in this action." There was judgment for plaintiff, and the defendants appeal, and assign the giving of the charge by the court's own motion, and the refusal to give the charge requested by them, as error.

McIntosh & Rich, for appellants.

G L. & H. T. Smith, for appellee.

CLOPTON J.

The first question in this case is whether the plaintiff can maintain an action for the recovery of specific property. The transaction out of which the controversy grew was an exchange of property by the parties. We must assume, as was evidently found by the jury, that defendants warranted the soundness of the horse which they delivered to plaintiff in exchange for the property sued for, and that the warranty was broken. Whatever may be the conflict in the authorities, it may be regarded as settled in this state that the remedy of the buyer to avoid a contract for the breach of a warranty is not restricted to cases where the warranty is fraudulent. This rule was settled as long ago as the decision in Barnett v. Stanton, 2 Ala. 181, in which it was said: "An offer to return the chattel in a reasonable time, on the breach of a warranty, or where fraud has been practiced on the purchaser, is equivalent in its effect upon the remedy to an offer accepted by the seller and the contract is rescinded." This rule seems to be sustained by the...