Willingham v. Wesley Hardware Co.

• Decision Date: 29 June 1933
• Docket Number: 7 Div. 184.
• Citation: 149 So. 703,227 Ala. 280
• Parties: WILLINGHAM v. WESLEY HARDWARE CO.
• Court: Alabama Supreme Court

149 So. 703

227 Ala. 280

WILLINGHAM v. WESLEY HARDWARE CO.

7 Div. 184.

Supreme Court of Alabama

June 29, 1933

Rehearing Denied Sept. 28, 1933.

Appeal from Circuit Court, Talladega County; W. B. Merrill, Judge.

Action on account by the Wesley Hardware Company against J. N Willingham. From a judgment for plaintiff, defendant appeals.

Affirmed.

Buyer by keeping machine and using it, and admitting correctness of account, did not waive right to claim by way of recoupment damages for breach of warranty in sales contract.

The following charges were given for plaintiff:

"1. I charge you, gentlemen of the jury, if you believe the evidence in this case you must find the issues in favor of the plaintiff."

"3. I charge you, gentlemen of the jury, if one would exercise the right of rescission of a contract of purchase it must be done promptly and unreservedly to the entire contract and a purchaser waives such right by retention of the subject matter of such contract after knowledge of the defects and thereafter using the same and treating the same as his own.

"4. I charge you, gentlemen of the jury, if you believe the evidence in this case you must find the issues in favor of the plaintiff and against the defendant under his plea no. 2.

"5. I charge you gentlemen of the jury, if you believe the evidence in this case you must find the issues in favor of the plaintiff and against the defendant under his plea no. 3."

"12. If the jury believes the evidence they must return a verdict for the plaintiff in such sum as they may believe from the evidence it is entitled to recover.

"13. I charge you, gentlemen of the jury, if you are reasonably satisfied from the evidence that at a time after said Kelvinator, Kohler lighting plant and other goods, equipment and material, the subject of the account sued on, were purchased by the Defendant from the Plaintiff as described in said sworn account filed with said complaint and as alleged in said complaint, and were installed on the premises of the Defendant, that the same were so installed by the Plaintiff at the Defendant's request and were accepted by the Defendant, and if you are further reasonably satisfied from the evidence that the Defendant thereafter, with full knowledge of the matters and things set up in each of his said pleas, 3 to 8, separately and severally, as constituting a defense to said account, did proceed to keep said equipment and to accept the same, and to use the same, and exercise unconditional ownership over the same, realizing the benefit to himself therefrom, over a period of, to-wit, two years thereafter, then I charge you your verdict in this case must be for the plaintiff in such sum as you may believe from the evidence it is entitled to recover.

"14. I charge you, gentlemen of the jury, that if you are reasonably satisfied from all the evidence in the case that the Kelvinator, Kohler lighting plant, goods equipment and materials, the subject of the account sued on, were purchased by the Defendant from the Plaintiff, as described in said sworn account filed with said complaint, and as alleged in said complaint, and were installed on the premises of the Defendant by the Plaintiff at Defendant's request and were accepted by the Defendant, and that the same were used by the Defendant thereafter, with full knowledge of all the matters and things set up in each of Defendant's pleas as a defense to this suit, and with all of said matters and things set up in said plea proceeded to use said equipment and materials, the subject of said complaint, for a period of more than two years; and if you further find that during all of said time, he did exercise unconditional ownership over the same, then I charge you your verdict in this case must be for the Plaintiff in such sum as you may believe from the evidence it is entitled to recover."

Pleas 2 and 3 set up that the account sued on is without consideration, and therefore void.

Pleas 4 to 8, inclusive, set up that a part of the account is for a refrigerating machine sold to defendant by plaintiff, represented by an agent of plaintiff, with knowledge of defendant's needs, to be such as would meet defendant's requirements, would automatically maintain a sufficient temperature for the purpose, and would cost no more than ice; that such representations were untrue, and defendant relied thereon to his damage, and the machine has never been satisfactory, etc.

The following charges were refused to defendant:

"A. The Court charges the jury, that if you are reasonably satisfied from the evidence in this case that the Plaintiff agreed with the Defendant to install the equipment testified to by the witnesses, and that the equipment was guaranteed to operate satisfactorily to the Defendant, before the Defendant would be required to pay for the same, then and in that event I charge you that the Plaintiff could not recover in this action for the Kohler, Kelvinator and lighting system unless the said equipment was installed by the Plaintiff and did operate satisfactorily to the Defendant."

"C. The Court charges the jury, that a continued use of the machinery testified about by the defendant is not an acceptance if he kept at the request of the Plaintiff and if you are reasonably satisfied from the evidence to this effect, it would be your duty to find for the Defendant."

J. J. Cockrell and Obe Riddle, both of Talladega, for appellant.

Knox, Dixon & Dixon, of Talladega, for appellee.

KNIGHT Justice.

Suit by appellee upon an account, which is in Code form, and under our uniform rulings was not subject to defendant's demurrer. Code, § 9531; Mann v. Butcher, 211 Ala. 669, 101 So. 595.

The plaintiff's replications 1 to 4, inclusive, were neither frivolous nor irrelevant, and therefore the court properly overruled defendant's motion to strike the same. Motion to strike is not the proper method of testing the sufficiency of a plea or replication. John Dodd Wholesale Grocery Co. v. Burt, 225 Ala. 438, 143 So. 832; Ashurst v. Arnold-Henegar-Doyle Co., 201 Ala. 480, 78 So. 386; Alabama G. S. R. Co. v. Clark, 136 Ala. 450, 461, 34 So. 917; Mobile Electric Co. v. Sanges, 169 Ala. 341, 349, 53 So. 176, Ann. Cas. 1912B, 461; Owensboro Wagon Co. v. Hall, 149 Ala. 210, 43 So. 71; St. Louis & S. F. R. Co. v. Phillips, 165 Ala. 504, 51 So. 638.

After his motion to strike plaintiff's replications had been overruled, the defendant filed a demurrer to each of said replications. The first three replications are but general denials of the defendant's pleas, and joining issue thereon.

We construe defendant's fourth, fifth, sixth, seventh, and eighth pleas as pleas in recoupment. Similar pleas were before this court in the case of Grissom v. J. B. Colt & Co., 218 Ala. 336, 118 So. 580, 582, and we there held that they were to be treated as pleas of recoupment and not in rescission for fraud.

In the Grissom Case, supra, we held:

"But the defrauded purchaser is not confined to his remedy by way of rescission. He may affirm the contract and upon being sued for the purchase price set up the fraud by plea of recoupment and then abate the price agreed to be paid. Fuller v. Chenault, supra [157 Ala. 46, 47 So. 197]; Eagan v. Johnson, supra [82 Ala. 233, 2 So. 302]; 2 Williston on Sales, §§ 645, 646. 'He is not required, * * * to demand a rescission. He may keep the property, and claim damages for the imperfection or deficiency, either by way of recoupment, or by separate action, if necessary or advisable.' * * * "The plea makes no reference to rescission or any repudiation of the contract. In the case of Lowery v. Mut. Loan Soc., 202 Ala. 51, 79 So. 389, this court considered pleas of similar character, and concluded they were properly to be construed as pleas of recoupment."

Whether these pleas of defendant were sufficient in averment, we are not now required to determine, as the court, against plaintiff's demurrer, held the same to be good.

The plaintiff's counsel evidently construed these pleas to set up a rescission of the contract, and filed thereto special replications 3 and 4. Replication No. 3 avers in effect that the defendant kept and used the property for a period of two years, with full knowledge all the while "of the matters and things set up in the plea," and upon which he based the defense of "misrepresentation and breach of warranty, and that he (defendant) thereby waived his right to interpose" said defense to the suit. Replication 4, in addition to the above averments, also avers that with full knowledge of the facts relied on to defeat the action, the defendant admitted the correctness of the account to plaintiff, and agreed to pay the same, and did thereafter use the property for a period of two years, and thereby waived his right to "set up as a defense said alleged matters and things as averred and alleged in said plea."

We do not think, for aught averred in plaintiff's replications 3 and 4, that the defendant waived any right he may have had to claim, by way of recoupment, damages for the breach of the warranty in the contract of sale, or for the misrepresentation, if any, of plaintiff's agent in inducing the defendant to make the purchase. A different result, of course, would follow had the defendant's pleas set up a rescission of the contract.

In the case of Lowery v. Mutual Loan Soc., Inc., 202 Ala 51, 79 So. 389, 391, this court, in...