Little-Cleckler Const. Co. v. L. Sonneborns Sons, Inc.

BROWN, P. J. The account, the basis of tbis action, is alleged to have been contracted in the purchase of a quantity of lapidolith. There is no controversy as to the quantity of this material furnished by the plaintiff to the defendants on their order, nor as to the price thereof. The defendant’s contention, as developed by the evidence offered on the trial, was that this material was purchased by them for the purpose of treating certain concrete floors, and that it was so purchased under an express warranty by the plaintiff that, if used and applied in accordance with instructions furnished by the plaintiff, it would result in hardening the floors and rendering them “wear proof’’ and free from dust accumulating from such wear; that the material or composition was so used and without benefit, and was therefore worthless to them, and they were damaged thereby to the extent of the expense incurred in applying the same to said floors. The plaintiff’s contention, on the other hand, was that this material was sold without such express warranty, but that they forwarded a quantity of the material to the defendant for the purpose of conducting a test, and with the understanding that, if the material so furnished for said test proved to be unsatisfactory, tbe defendant was not to be liable for the quantity used out of this first shipment in making the test, but if it proved satisfactory other material would be shipped on the defendant’s order to meet its wants; that after said test was made the defendant expressed its satisfaction as to the result, and ordered more of the material to complete the job. The court, in submitting the case to the jury, had the right to assume that one or the other of these contentions represented the true facts of the transaction, and to submit to the jury the issues as developed by the evidence. [1] If the plaintiff’s theory of the case is correct, there is no room for the application of the doctrine of implied warranty. It is a general rule that, notwithstanding goods are sold for a particular use, if the buyer himself understands what he wants and has full opportunity to acquire a knowledge of the facts necessary for him to form a correct estimate, and select such goods as he deems adapted to the intended pse, or selects the goods after making a test of their fitness for the purpose, there is no implied warranty that the goods are adapted to such use. Moore v. Barber Asphalt Co., 118 Ala. 563, 23 South. 798; McCaa v. Elam Drug Co., 114 Ala. 74, 21 South. 479, 62 Am. St. Rep. 88; 24 R. C. L. p. 190, § 461; also page 192, § 463. [2] On the other hand, if there was an express warranty, as contended by tbe defendant, this excludes the idea of implied warranty. Moore v. Barber Asphalt Co., supra; 24 R. C. L. p. 192, § 463, and authorities there cited; Wren and Glover v. Wardlaw, Minor, 363, 12 Am. Dec. 60; Duff v. Ivy, 3 Stew. 140; Barnes v. Blair, 16 Ala. 71. *218 [3] Charges 1, 2, 3, and 4, refused to the defendant, ignored the issues presented by the plaintiff’s evidence that the lapidolith was purchased after the defendant had conducted a test to determine its fitness, and were properly refused. Moore v. Barber Asphalt Co., supra. [4] And in view of the evidence the charge given at the plaintiff’s request was free from error. Affirmed.