Alabama Broom & Mattress Co. v. Nashville Broom & Supply Co.

SOMERVILLE, J. When any commodity is sold by description, as shown in this case, and the description is not substantially satisfied by the commodity delivered, the purchaser is not bound to accept it. Elliott v. Howison, 146 Ala. 568, 40 South. 1018; H. I. & M. Works v. Bland, 167 Ala. 391, 52 South. 445; Penn v. Smith, 98 Ala. 560, 564, 12 South. 818. But, if he does accept and use it, he does not thereby waive the defect, but may nevertheless treat the defect as a breach of warranty for which he may recover appropriate damages. 35 Cyc. 430, 3, and cases cited in note 36; Kornegay v. White, 10 Ala. 255; Milton v. Rowland, 11 Ala. 732; Marshall v. Wood, 16 Ala. 806; Eason Drug Co. v. Montgomery Showcase Co., 186 Ala. 454, 65 South. 345; Stewart v. Riley, 189 Ala. 519, 66 South. 488. The general rule as to the measure of damages in such a case is that— “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. 468 (III), citing Kornegay v. White, 10 Ala. 255; Marshall v. Wood, 16 Ala. 806; Buford v. Gould, 35 Ala. 265; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4; Bessemer, etc., Co. v. Brannen, 138 Ala. 157, 35 South. 56. These values are to be estimated as of the time of the breach, which in a case like this would be the time of the delivery. Manifestly the rules of law relating to im-1 plied warranties and attempted rescission after acceptance by the purchaser, as discussed in brief of counsel for appellee, have no application here, since none of those questions are presented. Plaintiff’s evidence tended to support the claim made by its complaint, and it was sufficient to inform the jury as to the amount of its recoverable damages, regardless of all the other evidence before the court; and we see no escape from the conclusion that the affirmative charge was improperly given for defendant. And, even if no sufficient data were presented for the estimation of damages, plaintiff would still have been entitled to recover nominal damages if tbe evidence showing a breach were believed by the jury. Several other questions are presented by the assignments of error, which may not recur on another trial, and their decision will therefore he pretermitted. For the error noted the judgment will be reversed, and the cause remlanded. Reversed and remanded. ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.