Opinion
8 Div. 596.
April 24, 1924.
Appeal from Circuit Court, Madison County; Jas. E. Horton, Judge.
Cooper Cooper, of Huntsville, for appellant.
In the absence of a definite description or a sample, if there was a warranty, it was not expressed, and only implied. Gachet v. Warren, 72 Ala. 293; McCaa v. Elam Drug Co., 114 Ala. 84, 21 So. 479, 62 Am. St. Rep. 88; Wilcox v. Henderson, 64 Ala. 542; Farrow v. Andrews, 69 Ala. 96; In re Bailey Gro. Co., 201 Ala. 79, 77 So. 373. Appellee having used the broom corn cannot say it did accept it. Ala. B. M. Co. v. Nashville B. S. Co., 208 Ala. 223, 94 So. 83; 35 Cyc. 224. Charge 10 should have been given. Moore v. Barber Asph. Co., 118 Ala. 563, 23 So. 798.
David A. Grayson, of Huntsville, for appellee.
The charges given were correct statements of the law. Ala. Broom M. Co. v. Nashville B. S. Co., 208 Ala. 222, 94 So. 83.
This is a suit by the Alabama Broom Mattress Company against the Nashville Broom Supply Company, a partnership, for damages for breach of a contract of warranty of a carload of "self-working broom corn," sold by the defendant to the plaintiff at 18 cents per pound, for which plaintiff paid the defendant.
There are eight counts in the complaint. Some are the common counts; others are based on breach of warranty in contract of sale of a car of "self-working broom corn"; and others are based on breach of a warranty in contract of sale of a car of self-working broom corn sold to plaintiff by sample. The defendant pleaded general issue with leave to give in evidence any matter which would be an answer or in bar thereof, if the same was specially and properly pleaded. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court against the defendant this appeal is prosecuted by the defendant.
This is the second appeal in this case. 208 Ala. 222, 94 So. 83. The averments of the complaint, the tendency of the evidence for plaintiff and defendant, appear in the report of the case, and they are similar in many respects on this trial, and need not be repeated in detail in this opinion. There were 79 bales of broom corn in the car. The plaintiff claimed and the evidence tended to show that plaintiff purchased a car of self-working broom corn at 18 cents per pound, f. o. b. cars at Huntsville, Ala., from defendant by sample previously sent by defendant to plaintiff; that practically one-half of the broom corn received by plaintiff was inferior to the sample, and was worth only 8 or 10 cents per pound, and the balance was suckers and of no value; it was not self-working broom corn. The car of broom corn was purchased with the understanding that it should equal in grade the sample furnished. The value of the grade of broom corn purchased at the time of delivery was from 18 to 20 or 21 cents per pound at Huntsville, and the sample furnished was self-working broom corn. The evidence of the defendant tended to show they sold plaintiff a car of broom corn to be of "good medium grade of self-working broom corn" at 18 cents per pound delivered at Huntsville; the corn delivered complied fully with that description; the same was not made from or according to any sample; and the value of the broom corn sold to plaintiff was 18 cents per pound at Huntsville at the time of the delivery. The evidence for plaintiff tended to show the broom corn received by him from defendant was not a "good medium grade of self-working broom corn."
R. H. Canterberry, a witness for the plaintiff testified:
"The kind of corn we bought was a good grade and self-working broom corn, plenty of length, to make nice size brooms, average house brooms. The kind we got was — well, about half the car was absolutely worthless suckers."
The court overruled defendant's objection to the statement of the witness "that about half of the car was absolutely worthless suckers," because it was a conclusion of the witness. This was on direct examination of the witness by plaintiff. The court did not err in this ruling, as the defendants had full opportunity on cross-examination to inquire into the facts in regard to the condition of the broom corn, which they did. This witness on cross-examination stated:
"That 40 bales was [were] practically self-working broom corn, but it was not self-working. * * * I did not use the balance of the seventy-nine bales. It was short, trashy stuff we couldn't work, and just threw it away."
Thomas G. Hill, witness for the defendants, testified:
"Mr. Furstenberg and myself selected each bale which was removed by the truckman."
The plaintiff moved to exclude the statement about Mr. Furstenberg; the court granted the motion, and the defendants duly excepted. This error, if any, was fully cured by other testimony of this witness, and testimony of Mr. Furstenberg. This witness testified:
"I selected the broom corn shipped so that it would be a car of self-working broom corn. I loaded 79 bales in the car, and selected them from a round lot of 400 bales that I had stored in this warehouse."
And Mr. Furstenberg testified for defendants that —
"We loaded the car at our warehouse in the city of St. Louis. * * * Mr. Thomas G. Hill personally selected the broom corn with which we loaded the car. * * * Mr. Hill personally came here and I went up in our warehouse with him and was with him while he selected the carload of corn."
In Penn Montgomery v. Smith, 98 Ala. 564, 12 So. 818, this court wrote:
"It is a familiar principle that when goods are sold by sample there is an implied warranty by the seller that the bulk of the commodity is equal in quality to the sample exhibited to the buyer; and if they do not correspond the purchaser may refuse to receive it."
The purchaser may retain the goods and sue for the damage suffered by breach of the warranty. Brown v. Freeman, 79 Ala. 406; Alabama Broom, etc., Co. v. Nashville Broom, etc., Co., 208 Ala. 222, 94 So. 83, and authorities there cited. See, also, Starr Jobbing House v. May Hosiery Mills, 207 Ala. 620, 93 So. 572. This principle was fully discussed and the rule declared in Magee v. Billingsley, 3 Ala. 679, headnote 4.
This court on the former appeal of this cause stated the rule as to the measure of damages. It was as follows:
" 'The buyer is entitled to recover the difference between the actual value of the goods and what the value would have been if the goods had been as warranted.' 35 Cyc. p. 468 (III)."
The plaintiff is entitled to recover the difference between the actual market value of the broom corn delivered, at the time and place of delivery, and what the actual market value of the broom corn would have been, at the time and place of delivery, if it had been as warranted. Zimmern v. Southern Ry. Co., 207 Ala. 169 (headnote 2) 92 So. 437; Southern Ry. Co. v. N.W. Fruit Exch., 210 Ala. 519, 98 So. 382 (headnotes 14, 15).
Written charges numbered 1, 2, 4, 5, 6, and 7, separately requested by the plaintiff and separately given by the court, are each in harmony with these principles, and they were properly given by the court. Written charges 8 and 9, separately requested by the defendant, and separately refused by the court, are not in accord with these principles, and the court properly refused them.
The appellant insists charge 2 should have been refused because it states and assumes the broom corn was sold by description. It states, "when any commodity is sold by description as shown in this case." This did not render the charge erroneous because the undisputed evidence shows it was sold by "description." The charge follows the very language of the opinion in this case on former appeal. The plaintiff's evidence tended to show it was sold by description in the form and shape of a sample, and the goods delivered did not measure up substantially to the sample, while the evidence for the defendant tended to show it was sold by "description," and the description was that it was to be a "good medium grade of self-working broom corn" or a "good grade of self-working broom corn," and the broom corn delivered measured up substantially to this description, and the evidence of the plaintiff tended to show the broom corn delivered did not measure up substantially to that description.
Written charge 10, requested by defendants, was properly refused by the court because it was calculated to mislead the jury by requiring plaintiff to make proof of "the amount of such damages by figures, and it contains an ellipsis. It states, "In the event the jury find the evidence." It leaves out the word "from" after the word "find." The same rule of law attempted to be set out in this charge was substantially and fairly given to the jury in the court's general charge. Section 5364, as amended, Acts 1915, p. 815.
The court did not err in refusing written charge No. 11, requested by the defendants. It is argumentative, abstract, and leaves out, "if the jury believe from the evidence," or "find from the evidence." 12 Michie, Dig. p. 481, § 199.
Written charge No. 3, given by the court at the request of plaintiff, is confused and argumentative, and could have been refused, but the giving of it was not reversible error.
The record is free from reversible error, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.