Opinion
1 Div. 966.
May 17, 1917.
Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.
Gregory L. Smith Son, of Mobile, for appellant. Stevens, McCorvey McLeod, of Mobile, for appellee.
The foregoing statement will suffice as a general outline of the case, and a basis for an understanding of questions to be determined upon this appeal.
The first assignment of error insisted upon by counsel for appellant relates to the rulings of the court overruling the demurrer to pleas 3 and 5; it being urged that the only implied warranty was that it was merchantable ammonia of the character purchased. Gachet v. Warren Burch, 72 Ala. 288; McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 Am. St. Rep. 88; Baer Co. v. Mobile Cooperage Co., 159 Ala. 491, 49 So. 92; Thomas v. Irvine, 171 Ala. 332, 55 So. 109. We are of the opinion, however, that this question is unnecessary to be determined. These pleas rested upon an implied warranty, and it is shown without dispute that the sales of the ammonia were made under express warranties as to quality. Such being the situation, it is the well-understood rule, and indeed conceded by counsel for appellant in brief, as we understand them, that an express warranty of quality necessarily supersedes and excludes all implied warranties upon that subject. It was so determined, and this principle given full application by this court in the recent case of Holt v. Givens, 72 So. 257. Conceding, therefore, for the purpose of this case, and without deciding the same, that pleas 3 and 5 were subject to the demurrer, yet, if error there was, it was clearly without injury, and no reversal of the cause could be predicated thereon. Holt v. Givens, supra. It might be noted also in this connection that pleas 7 and 9 were substantially the same as pleas 3 and 5, and to pleas 7 and 9 no demurrers were interposed, but practically the same replications were interposed as had been filed to pleas 3 and 5.
196 Ala. 640.
It is next insisted by counsel for appellant that, inasmuch as there are a number of different sales and separate warranties as to each, it was necessary to show which particular ones were breached, and, without doing so, the amount of damages could not be ascertained, for the decreased value of ammonia incident to the defective condition of such of it as was impure was a material element of damages, and the amount thereof could not be known without showing what part, and how much, of the ammonia was defective. It is shown without dispute that both parties to the transaction fully knew and understood that all the ammonia purchased was for the purpose of charging these machines of the defendant for the manufacture of ice, and that therefore the ammonia would be commingled into a common mass and become one thing. It is without dispute, and indeed admitted by the plaintiff, that the quality of the ammonia was expressly warranted, and we are of the opinion that when the evidence of the manager of the plaintiff company is considered in connection with the letters shown to have been written in regard to the quality of these ammonias, it was sufficient to be properly interpreted by the jury as a warranty on the part of the appellant covering all the ammonia furnished by it to appellee for the purpose of charging the particular ice machines in question, including not only initial charges, but also such additional ammonias as might be deemed necessary to supplement the original charges. In addition to this, it further clearly appears that the seller knew all the shipments to be commingled, and that one impure charge in the machine would make the whole impure, and thereby the value of the entire impure mixture would be decreased to the amount which would have been its value if all of it had been impure, thus producing the same actual damages. In addition to this, however, we are of the opinion that under the strict rule of pleading the plaintiff has in fact confessed the pleas, except as to the amount of damages, as to which its intended sufficient data was not furnished by the evidence.
Pleas 4, 6, 8, and 10 each allege that the plaintiff warranted the anhydrous ammonia to be perfectly pure and dry, and all the aqua ammonia to be absolutely pure, 26 degree aqua ammonia. Pleas 4 and 8 allege, in substance, that all the ammonia was impure and defective, and pleas 6 and 10 allege that the original charges of both machines consisted of the purchases made in January and February, and that a material portion of the ammonia in each of these charges was impure, and necessarily spread throughout the entire charge, thus rendering the whole impure, including that subsequently bought. Each of these pleas contain appropriate averments showing knowledge on the plaintiff's part necessary to enable the defendant to recover special damages. No demurrer was interposed to any of those pleas, nor were any issues joined thereon. The only pleadings in response were the special replications noted in the statement of the case. The replications to pleas 4 and 6 allege that the price of the ammonia was but a part of the cause of action sued on; that the plaintiff sold the ammonia by description only, the aqua ammonia as 26 degree aqua ammonia at 60 degrees Fahrenheit, and so warranted, and the anhydrous ammonia as dry, anhydrous ammonia, and so warranted, and did not otherwise warrant the same; that the said aqua ammonia was merchantable 26 degree aqua ammonia, and the anhydrous ammonia was merchantable, dry, anhydrous ammonia, and that the said ammonias were sold deliverable at point of shipment. The replications to pleas 8 and 10 are substantially the same as to those of pleas 4 and 6, with the omission of the averment that the price of ammonia was only a part of the cause of action sued on.
Referring to the proof, it appears that the suit was for $2,631.92, but only an account for $2,363.97 was proven, all of which was for the purchase price of the ammonias mentioned; and therefore, if the plaintiff was suing on any other claim, the proof failed to so disclose; and the first averment of replications to pleas 4 and 6 is therefore not supported.
The pleas allege an express warranty as to purity, and the averment of the replications omits this entirely. The proof of the plaintiff itself as disclosed by the testimony of the manager, as well as by the correspondence offered in evidence, further supports the pleas in respect to the express warranty as to purity.
The averment in the replications that the ammonias were to be delivered at the point of shipment, New Orleans, is disproved by plaintiff's manager, whose testimony shows that it was sold to be delivered in Mobile. It, therefore, clearly appears that the special replications are without support in the proof. No issue was joined upon the pleas, and there was no general traverse or denial. This situation comes, therefore, under the rule long established in this state that such pleas are to be taken as confessed. Miller v. Johnson, 189 Ala. 354, 66 So. 486. Aside from this question of pleading, after a careful examination of the evidence in this cause, we find that the pleas are amply supported by the proof offered, not only in respect to the express warranty as to the purity of the ammonias, but also in respect to the quality of the ammonia itself.
The operation of two machines in the manufacture of ice with these ammonias, with the result of the great decrease of the rated capacity of the machines, was but one mode of establishing the impurity of the ammonias and the unfitness for the purpose for which it was purchased, with the knowledge of the plaintiff.
There was other proof tending to establish its impurity, aside from this, including the chemical test; and, aside from the question of pleading, we would be unwilling to disturb the judgment on account of the ruling of the court in denying the motion for a new trial.
Finding no reversible error, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.