Ex Parte Means

GARDNER, J. Petition for writ of certiorari to review the adtion of the Court of Appeals reversing the cause, styled in that court, Abraham Bros. v. Noah Means. The opinion of the Court of Appeals discloses that the second count of the complaint was for the breach of the warranty in the sale of a mule by defendant to plaintiff, which defendant warranted to be sound, when in fact said mule was not sound, but was at the time sick. The twentieth assignment of error was based upon the refusal of the court to give at the request of the defendant the written charge that the jury could only find for the plaintiff for nominal damages, and the Court of Appeals rests the reversal of the cause upon the refusal of this charge. The opinion is based upon the theory that, while there was evidence tending to show the value of the mule as sound being the sum of $207.50, yet there was no evidence from which the jury could infer the value of the mule in its unsound condition as contended by plaintiff. The opinion discloses that plaintiff contended that the mule was sick at the time he purchased it, and that in a very few days he returned the mule to defendant, and never received another mule in its stead, nor a return of his money, and it further appears that the mule soon thereafter died. The plaintiff further testified, as quoted in the opinion, that the mule was “no account after he got sick.” The Court of Appeals holds that the expression “no account” was not equivalent to saying that the mule was of m> market value, as the word “account” is flexible in meaning, depending somewhat on the surrounding circumstances, and the connection in which it is used, and that a jury would not be warranted in saying that it is synonymous with “no market value.” It is true that the word “account” is flexible in meaning. Mr. Webster defines it as meaning, among other things, “valuation; worth; value.” While the expression “no account” may be a provincialism with no particular *379 fixed meaning in this section as that in each instance it would be synonymous with “no market value,” yet we are of the opinion, in view of the above well-known definition that when a witness, testifying in a ease of this character, stated that the mule was “no account after he got sick,” this was sufficient from which the jury could infer reasonably that the witness intended to state that the mnle was of no value, of no worth, or of no valuation. We conclude that this evidence was sufficient for submission to the jury for its determination (Tombigbee V. R. R. Co. v. Still, 6 Ala. App. 470 1 ), and that the trial qoui'1 cannot be put in error for refusing the charge constituting the assignment of error above referred to. It results therefore that in our opinion the reversal of the cause should not he rested upon this action of the court, and the order of reversal will here be set aside, and the cause remanded to the Court of Appeals. Reversed and remanded. All the Justices concur, except McCLEL-LAN, J., who dissents. Footnotes [1] 60 South. 546.