Troy Laundry Mach. Co. v. Joyce, 6 Div. 587.

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, Justice.
Citation229 Ala. 331,157 So. 214
PartiesTROY LAUNDRY MACH. CO. v. JOYCE.
Docket Number6 Div. 587.
Decision Date18 October 1934

157 So. 214

229 Ala. 331

TROY LAUNDRY MACH. CO.
v.
JOYCE.

6 Div. 587.

Supreme Court of Alabama

October 18, 1934


Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action on account by the Troy Laundry Machine Company against James R. Joyce, doing business as Utopia Cleaners and Dyers. From a judgment over for defendant, plaintiff appeals. Transferred from Court of Appeals.

Affirmed. [157 So. 215]

Chas. A. Calhoun and Harvey M. Emerson, both of Birmingham, for appellant.

Vassar L. Allen, of Birmingham, for appellee.

FOSTER, Justice.

This is an action on an account by appellant against appellee. Only one item in the account was disputed, and no controversy appears on this appeal in respect to it.

The matters of material dispute are in respect to a counterclaim set up by appellee in special pleas A and B. Plea A sets up the claim as a set-off. Plea B offers to set-off and recoup it against the demands of plaintiff.

The subject-matter of the pleas did not grow out of the account set up in the complaint nor out of the contract by which the account arose. The pleas are therefore to be classed as in set-off, regardless of the classification which they undertake to assert for themselves. Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387.

Demurrer to them was overruled by the court, and the ruling is here assigned for error and insisted on by appellant. The demurrer seems to be predicated upon the idea that the pleas claim damages for deceit in the sale of certain machines (not items of the account sued on), and that since they are not matters of recoupment, they cannot be set off because they claim damages which are not measured by a legal standard. But the pleas do not set up a claim in deceit, but seem to be predicated upon a breach of an implied warranty by plaintiff, as a manufacturer of the articles, that they are reasonably adapted to the purpose for which they are known to be bought by defendant. The demurrer does not point out any insufficiency of averment as a claim of set-off on that account.

For a breach of warranty, expressed or implied in the sale of chattels, as for deceit, the purchaser may retain the goods and claim damages for the breach (or the fraud), or may rescind the sale and recover the price paid. Gen. Acts 1931, p. 588, § 69; Fairbanks, Morse & Co. v. Dees, 220 Ala. 41, 126 So. 624; Gorman-Gammill Seed & Dairy Supply Co. v. Carlisle, 220 Ala. 116, 124 So. 288. He...

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5 practice notes
  • Shelby County v. Baker, 7 Div. 386
    • United States
    • Supreme Court of Alabama
    • April 9, 1959
    ...made and an adverse ruling by the trial judge. Dorroh v. Jefferson County, 264 Ala. 335, 87 So.2d 619; Troy Laundry Mach. Co. v. Joyce, 229 Ala. 331, 157 So. 214; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Western Union Telegraph Co. v. Howington, 198 Ala. 311, 73 So. ......
  • In re Sunbelt Vacation Travel, Inc., Bankruptcy No. 88-01551
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Alabama
    • November 23, 1988
    ...a setoff may be a separate and independent demand, not connected with the original cause of action. Troy Laundry Machine Co. v. Joyce, 229 Ala. 331, 157 So. 214 (1934). Therefore, to the extent the Restaurant is defending a rent turnover action by the Debtor, setoff may be pleaded for the l......
  • Howell v. Dodd, 8 Div. 596.
    • United States
    • Supreme Court of Alabama
    • October 18, 1934
    ...relating to the rulings of the court in respect to the admission of the ledger sheet, and counsel have not pointed out such an assignment. [157 So. 214.] 5. This relates to the first and second assignments of error. The questions to which the assignments relate do not show that injury resul......
  • Lambert v. Jefferson, 5 Div. 451.
    • United States
    • Supreme Court of Alabama
    • June 24, 1948
    ...to support a count against demurrer, but only necessary to support evidence of that sort of damage. Troy Laundry Mach. Co. v. Joyce, 229 Ala. 331, 157 So. 214; 25 Corpus Juris Secundum, Damages, § 131(b), page 752; Trammell v. Chambers County, 93 Ala. 388, 9 So. 815. We do not think that pl......
  • Request a trial to view additional results
5 cases
  • Shelby County v. Baker, 7 Div. 386
    • United States
    • Supreme Court of Alabama
    • April 9, 1959
    ...made and an adverse ruling by the trial judge. Dorroh v. Jefferson County, 264 Ala. 335, 87 So.2d 619; Troy Laundry Mach. Co. v. Joyce, 229 Ala. 331, 157 So. 214; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Western Union Telegraph Co. v. Howington, 198 Ala. 311, 73 So. ......
  • In re Sunbelt Vacation Travel, Inc., Bankruptcy No. 88-01551
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Alabama
    • November 23, 1988
    ...a setoff may be a separate and independent demand, not connected with the original cause of action. Troy Laundry Machine Co. v. Joyce, 229 Ala. 331, 157 So. 214 (1934). Therefore, to the extent the Restaurant is defending a rent turnover action by the Debtor, setoff may be pleaded for the l......
  • Howell v. Dodd, 8 Div. 596.
    • United States
    • Supreme Court of Alabama
    • October 18, 1934
    ...relating to the rulings of the court in respect to the admission of the ledger sheet, and counsel have not pointed out such an assignment. [157 So. 214.] 5. This relates to the first and second assignments of error. The questions to which the assignments relate do not show that injury resul......
  • Lambert v. Jefferson, 5 Div. 451.
    • United States
    • Supreme Court of Alabama
    • June 24, 1948
    ...to support a count against demurrer, but only necessary to support evidence of that sort of damage. Troy Laundry Mach. Co. v. Joyce, 229 Ala. 331, 157 So. 214; 25 Corpus Juris Secundum, Damages, § 131(b), page 752; Trammell v. Chambers County, 93 Ala. 388, 9 So. 815. We do not think that pl......
  • Request a trial to view additional results

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