Opinion
4 Div. 807.
March 22, 1932. Rehearing Denied May 17, 1932.
Appeal from Circuit Court, Covington County; Emmet S. Thigpen, Judge.
Action on note under seal by the Starr Piano Company against E. L. Gatlin. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Gatlin v. Starr Piano Co., 225 Ala. 558, 144 So. 461.
E. O. Baldwin, of Andalusia, for appellant.
In an action on a note given by the purchaser for an article purchased, a plea alleging seller's warranty and by reason of unsoundness or breach of warranty the property was lost to defendant was a good plea. Roddam v. Brown, 201 Ala. 109, 77 So. 403. Defendant was entitled to introduce evidence of the condition of the property, to prove the difference in value as purchased and as warranted. Adams Hdw. Co. v. Wimbish, 201 Ala. 548, 78 So. 902. Purchaser who rescinds for defect in chattel must return or offer to return the property purchased. Maples v. Douglass, 205 Ala. 94, 87 So. 585.
Marcus J. Fletcher, of Andalusia, for appellee.
Defendant had no right to attempt to change the terms of the written contract by parol evidence. Bozeman v. Colt Co., 19 Ala. App. 126, 95 So. 588, 589. Evidence with reference to the breach of warranty must be confined to the time of sale or a reasonable time for such breach to have been discovered. Roddam v. Brown, 201 Ala. 109, 77 So. 403; Nashville B. S. Co. v. Alabama B. M. Co., 211 Ala. 192, 100 So. 132; Robinson v. Steverson, 20 Ala. App. 59, 100 So. 910.
This was a suit by appellee against appellant on a note under seal for the sum of $250. There was verdict and judgment in favor of appellee for the amount of $150 and costs.
The note, originally for the amount of $300, $50 admittedly having been paid on same, was executed on May 24, 1928, and it was without dispute that it was, before suit brought, past due and unpaid.
It was shown, also without dispute, to have been given by appellant to appellee for the amount of the deferred payments, a part of the purchase price, of a certain piano therein described.
Appellant's defense was, the plea being in short by consent, etc., a breach of warranty in the sale to him of the said piano, in that, while same was represented to him as a new piano, etc., it was, in fact, one that had been used for a number of years, and was worth much less than it would have been had it been as it was represented to him to be, etc.
There were no given nor refused charges, and no exceptions to the trial court's oral charge.
The only matters requiring our attention are some exceptions to rulings made on the taking of testimony in the case.
The principle of law, governing, in this case, under the pleadings, is exactly similar to that stated in the second headnote to the report of the case of Roddam v. Brown et al., in 201 Ala. at page 109, 77 So. 403, to wit: "For breach of warranty of soundness of a cow sold, the purchasers were entitled to recoup in damages, in the seller's action on their note, to the extent of the difference between the value of the cow in her unsound condition and what her value would have been had she been as warranted."
The instant case was tried in accordance with the above principle; the trial judge making it plain to the jury that appellant, under his plea, was entitled to "recoup in damages * * * to the extent of the difference between the value of the (piano) in (its actual condition) and what (its) value would have been had (it) been as warranted."
The testimony was in hopeless conflict; that for each litigant tending to fully support its or his contention.
We have examined each of the assignments of error resting upon rulings made on the taking of testimony which are even slightly insisted upon in argument by counsel for appellant. But we deem it unnecessary to give them separate mention here. The exceptions referred to are obviously without merit.
Each litigant was allowed ample latitude in bringing out in evidence those matters thought to support his or its claim.
There is no prejudicial error, and the judgment is affirmed.
Affirmed.