Opinion
6 Div. 209.
October 23, 1924.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Sowell Gunn, of Jasper, for appellant.
Demurrer to the second count of the complaint should have been sustained. McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 Am. St. Rep. 88; Little-Cleckler Co. v. Sonneborns, 17 Ala. App. 216, 84 So. 548; Moore v. Asphalt Co., 118 Ala. 563, 23 So. 798. Plea 6 was not subject to demurrer. Code 1907, §§ 2489, 2490; Johnson v. Martin, 54 Ala. 271; Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am. St. Rep. 193; Behannon v. Thomas, 159 Ala. 410, 49 So. 308; A. G. S. v. Altman, 191 Ala. 429, 67 So. 589; B. R., L. P. Co. v. Ætna Co., 184 Ala. 601, 64 So. 44; N.C. St. L. v. Abramson, 199 Ala. 271, 74 So. 350; Spurgeon Co. v. McCall, 204 Ala. 395, 85 So. 480; Hirschfelder v. Mitchell, 54 Ala. 419; Hallmark v. Hopper, 119 Ala. 78, 24 So. 563, 72 Am. St. Rep. 900; Dougherty v. Powe, 127 Ala. 577, 30 So. 524; Vinegar Bend Co. v. Chicago Co., 131 Ala. 411, 30 So. 776; Ex parte Randall, 149 Ala. 640, 42 So. 870. The assignment of the right of action was erroneously admitted in evidence. Coffman v. L. N., 184 Ala. 474, 63 So. 527; Hicks v. Meadows, 193 Ala. 246, 69 So. 432. The part of the court's oral charge upon the measure of damages was erroneous. Abraham Bros. v. Means, 16 Ala. App. 42, 75 So. 187; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4; Young v. Arntze, 86 Ala. 116, 5 So. 253; Bessemer Ice Co. v. Brannen, 138 Ala. 157, 35 So. 56; Consumers' Coal Co. v. Yarbrough, 194 Ala. 482, 69 So. 897; Roddam v. Brown, 201 Ala. 109, 77 So. 403; Chapman v. Dowling, 205 Ala. 586, 88 So. 748.
W. F. Finch, of Jasper, for appellee.
There was an implied warranty in this case that the coal would be fit for the purpose for which it was bought. Troy Groc. Co. v. Potter Wrightington, 139 Ala. 359, 36 So. 12; Frith v. Hollan, 133 Ala. 583, 32 So. 494, 91 Am. St. Rep. 54; Gachet v. Warren Burch, 72 Ala. 288; Snow v. Schomaker Mfg. Co., 69 Ala. 111, 44 Am. Rep. 509; Pacific Guano Co. v. Mullen, 66 Ala. 582. Plea 6 was subject to demurrer. Code 1907, § 2489; Sullivan v. L. N., 138 Ala. 650, 35 So. 694; Pearson v. King, 99 Ala. 125, 10 So. 919; Ex parte Randall, 149 Ala. 640, 42 So. 870; Ala. Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Bank v. Bank, 16 Ala. App. 247, 77 So. 167; A. C. G. A. v. Kyle, 202 Ala. 552, 81 So. 54.
Count 2, the one upon which this cause was tried, stated a cause of action as for the breach of an implied warranty in the sale of a carload of coal. When the buyer orders goods to be supplied and trusts to the judgment of the seller to select the goods, which shall be applicable for the purpose for which they are intended, which is known to both parties, there is an implied warranty that they are fit for that purpose. 2 Benjamin on Sales, § 998; Troy Grocery Co. v. Potter Wrightington, 139 Ala. 359, 36 So. 12.
The case of McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 Am. St. Rep. 88, in no wise conflicts with this holding as the opinion in said case quotes approvingly the above statement by Mr. Benjamin and says that the facts set up in the second and third counts are such from which an implied warranty may arise, but each of them went further and averred an agreement and undertaking to furnish a certain kind and quality of paint for the purpose for which she desired the same, and that they were for a breach of an express agreement as distinguished from an implied warranty. Count 2 was not subject to the defendants' demurrer, which was properly overruled by the trial court.
This suit is for the breach of an implied warranty in the sale of a carload of coal, and is not such an action as falls within the influence of sections 2489 and 2490 of the Code of 1907. Sullivan v. L. H. R. R., 138 Ala. 650, 35 So. 694. It seems, however, that notwithstanding section 2489 of the Code, and not withstanding the beneficial owner may sue in the instances there enumerated the holder of the legal title, if a party to whom payment can legally be made, and who can legally discharge the debtor, may bring the action in his own name, although the money when collected is not for his use. Rice v. Rice, 106 Ala. 636, 17 So. 628; Hirschfelder v. Mitchell, 54 Ala. 419. The legal owner may no doubt sue for the beneficial owner or the beneficial owner could no doubt use the name of the legal owner when necessary, upon indemnifying him for cost, but it would seem from the foregoing authorities that if the legal owner cares to assume the burden and responsibility he can maintain the action in his own name. The trial court did not err in sustaining the demurrer to defendants' plea 6.
The trial court committed no reversible error in permitting the written assignment from Pearce to the plaintiff to be introduced in evidence. Plaintiff had just testified that he previously sold and transferred the claim to Pearce, and the transfer in question was relevant evidence of a retransfer of the claim to the plaintiff. On the other hand, if the previous transfer did not get the title out of the plaintiff, and the retransfer was irrelevant, it was harmless, as the plaintiff in either event would be the legal owner. The fact that the retransfer to the plaintiff was not for a valuable consideration was of no moment to this defendant, who was not a purchaser or creditor.
The case of Coffman v. L. N. R. R., 184 Ala. 474, 63 So. 527, involved the admission of an agreement of indemnity between the plaintiff and the insurance company, introduced by the other side, and the court held that it was not without injury, as it tended to weaken the plaintiff's claim of title.
The case of Hicks v. Meadows, 193 Ala. 246, 69 So. 432, involved a gift of personal property without a delivery. Here we have no personal property to deliver, but the mere assignment of a cause of action.
For reasons set out under the second proposition discussed in this opinion the trial court did not err in refusing the defendants' requested charges A, B, D, and E.
There was no error in refusing the general charge requested by the defendant. Under the rule laid down in discussing the complaint, the jury was authorized to find an implied warranty in the sale of the coal by the defendant when negotiating with Anthony, who was acting for the plaintiff. Nor was the coal sold by inspection, but by bill of lading, with draft attached. The plaintiff testified that he took up the draft and bill of lading "before unloading or inspecting the coal."
The oral charge of the court substantially conformed to the law as to Holloway's rights as the legal owner. True, the word "alone" could have been omitted therefrom, but, conceding that the beneficiary could also, under the circumstances, have settled or released the claim, Holloway had the primary right to do so, and the question of a release or the conflicting rights of Holloway or Pearce to make one was not involved.
While that part of the oral charge excepted to in reference to damages is not as clear and full as it might be, we do not think that it was injuriously erroneous when compared with the complaint and plaintiff's proof, which seems to have been accepted by the jury. The complaint only claimed back what plaintiff had paid for the coal, including expenses for shipping and hauling, and that the coal was worthless for the purpose for which it was bought, and the oral charge, as excepted to, held the jury down to the difference between what was paid out and what the coal was actually worth to the plaintiff.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.