Opinion
6 Div. 317.
March 28, 1929.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Ritter, Wynn Carmichael, of Birmingham, for appellant.
The written contract sued on is classified as an agreement of sale or return. Robinson v. Fairbanks, 81 Ala. 132, 1 So. 553; 4 Paige on Contr. § 2112; Allen Bethune Co. v. Maury Co., 66 Ala. 10; Stevens v. Hertzler, 109 Ala. 423, 19 So. 838; 35 Cyc. 290; Columbia Weigh. Mach. Co. v. Kleckner, 130 Misc. Rep. 861, 225 N.Y. S. 167; Columbia Weigh. Mach. Co. v. Hansen, 131 Misc. Rep. 770, 227 N.Y. S. 324; Columbia Weigh. Mach. Co. v. Vaughan, 123 Kan. 474, 255 P. 973. If defendant failed to exercise its option to return the machine within 30 days, and retained the machine beyond that time, it became absolutely liable for the purchase price. Authorities, supra. A plea of rescission is not good in a contract of sale unless it alleges a tender of the article sold, either before filing the plea, or makes tender at the time of pleading. A plea that the article sold is worth greatly less than the purchase price, without alleging a warranty and offering to set off the difference between the price of the machine and its actual value, is not a defense to a suit for the purchase price.
Charles W. Greer, of Birmingham, for appellee.
A reversal cannot be predicated upon the trial court's ruling on a general demurrer. Cowan v. Motley, 125 Ala. 369, 28 So. 70. The law of this state implies a warranty in the contract for sale of machines that they are reasonably adapted for the uses and purposes for which they are sold. There is no need of a direct allegation of fact which is necessarily implied. Kennebrew v. Sou. Automatic Mach. Co., 106 Ala. 377, 17 So. 545; Snow v. Schomacker, 69 Ala. 111, 44 Am. Rep. 509; 31 Cyc. 48. Grounds of demurrer not assigned are considered waived. Turner v. Glover, 101 Ala. 290, 13 So. 478; Conner v. State, 211 Ala. 325, 100 So. 474; Geiger v. Gillespie, 207 Ala. 528, 93 So. 412.
The defendant's pleas 3 and 4 are bad, and the trial court erred in not sustaining the plaintiff's demurrer thereto. The fact that the plaintiff may have directed the defendant to make the payments only to a local bank and when demanded by said bank was no excuse for a failure to pay when the demand by this suit was made. In other words, the failure of the bank to demand and collect the respective installments did not satisfy or cancel the debt or permit the defendant to defeat the recovery for same. The facts set up in these pleas, if accompanied by a tender, might affect the court cost or the right of the plaintiff, under the contract, to declare all the installments due, but they set up no defense whatever to so much of the demand as was past due when the suit was brought. We also think that the second ground of the demurrer went to the substance of the plea and was sufficiently specific. The pleas set up no defense by way of traverse or confession and avoidance, and we do not see how it could have been more specifically tested except to require the plaintiff, in the demurrer, to formulate a defense for the defendant.
The contract set out or referred to in counts 1 and 2 of the complaint belong to the class of contracts often called "contracts of sale or return." It gives the right to retain the machine for 30 days after the receipt of same and to return the same within said 30 days if not satisfied with same. This, of course, gives the buyer the right to rescind in 30 days, but cuts off his right to do so after the expiration of said 30 days. Likewise the retention of the machine for 30 days was a conclusive admission of the truth of all warranties made by the seller and would annul the same, express or implied. Taylor v. Yates Machine Co., 208 Ala. 528, 94 So. 588. To like effect is the holding of the New York Court in dealing with a similar contract setting up similar defenses. Columbia Weighing Machine Co. v. Kleckner, 130 Misc. Rep. 861, 225 N.Y. S. 167. See, also, Columbia Weighing Machine Co. v. Hansen, 131 Misc. Rep. 770, 227 N.Y. S. 324; Columbia Weighing Machine Co. v. Vaughan, 123 Kan. 474, 255 P. 973. The trial court also erred in not sustaining the plaintiff's demurrer to pleas 5 and 6.
The judgment of the circuit court is reversed, the judgment of nonsuit set aside, and the cause is remanded.
Reversed and remanded.
SAYRE, THOMAS, and BROWN, JJ., concur.