Opinion
6 Div. 35.
April 22, 1920. Rehearing Denied May 27, 1920.
Appeal from Circuit Court, Jefferson County; H. A. Sharpe, Judge.
Thompson Thompson, of Birmingham, for appellant.
Plea 3 was subject to demurrer. 120 Ala. 611, 24 So. 942; 82 Ala. 233, 2 So. 302; 115 Ala. 356, 22 So. 151; 140 Ala. 440, 37 So. 199, 103 Am. St. Rep. 58; 137 Ala. 175, 34 So. 841; 141 Ala. 300, 37 So. 436. As to the measure of damages, see 138 Ala. 163, 35 So. 56; 181 Ala. 439, 61 So. 345; 104 Ala. 449, 18 So. 38; 97 Ala. 677, 12 So. 82; 50 Ala. 347; 78 Ala. 512, 56 Am. Rep. 52. The court should have set aside the verdict. 126 Ala. 95, 27 So. 760; 95 Ala. 143, 10 So. 141; 102 Ala. 325, 14 So. 657; 108 Ala. 81, 19 So. 326.
Richard H. Fries, of Birmingham, for appellee.
Under the circumstances the machinery was warranted to be reasonably fit for such purposes. 187 Ala. 629, 65 So. 962. The buyer may recoup by counterclaim or maintain action for breach of warrant. 1 Ala. App. 599, 56 So. 22; 9 Ala. App. 164, 62 So. 388; Id. 254, 63 So. 13.
The demurrer to the third plea of recoupment should have been overruled, as it was. By said plea it appeared plainly enough that the indebtedness grew out of the transaction out of which plaintiff's cause of action arose, and was a subsisting claim at the commencement of plaintiff's suit. And in other respects the plea sufficiently described defendant's alleged cross-cause of action.
The charge set out in the fifth assignment of error was properly refused. It is true, of course, that if the only defect in the machine sold by plaintiff to defendant was in the gear wheel, and that could have been replaced or repaired at a reasonable outlay, it would have been defendant's duty, in the way of minimizing damages, to replace the gear wheel; but we cannot say as matter of law on the evidence that the machine was not defective in other respects — it may have been defective, at least there was evidence on which the jury might have hung a finding that it was defective, as a whole, in that, even with a perfect gear wheel, it was and would have been unable to do the amount of work it was said to do. This charge ignored this phase of the evidence; but the court had no right to ignore it.
Charges shown in assignments of error 3, 4, 6, 7, and 8, requested by the plaintiff, substantially, each of them, the general affirmative charge against defendant's plea of recoupment, were properly refused. There was evidence, as we have said, tending to prove the inability of the machine as a whole, and evidence that its value was greatly less than the agreed purchase price. This evidence deprived the bench of the power to give the general charge requested; nor was this proposition as to the power of the court in the least denied or modified by the further fact, assuming it to be a fact as alleged by appellant, that the evidence overwhelmingly supported appellant's contention. In our system of law and practice it is too familiar to require argument that a scintilla of evidence took the issue to the jury.
In overruling appellant's motion for a new trial we presume the court found that the jury were not to be reprobated for giving credence to the two or three witnesses who testified in support of defendant's plea of recoupment, detailing the specific defect in the machine and its general inability to do the work for which it was bought. Plaintiff had at hand nothing in particular in the way of rebuttal; in fact the issue made by the plea was left to be tried on the testimony of defendant's witnesses, with such coloring as the jury may have found in some vague indications of unreasonableness or even shiftiness in defendant's correspondence with plaintiff, and if the witnesses, defendant included, appeared to be fair and honest — and the trial judge saw them — we are unable, under our rule, to say that the jury should have found differently. Appellant, or its counsel, seem to feel keenly that a wrong has been done, and they may know more of the case than we do, but, after allowing all reasonable presumptions in favor of the trial court's ruling, we are unable, in the circumstances shown by the record, to say that the preponderance of the evidence against the verdict was so decided as that it should or does convince us that it was wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.