Parker v. McFerrin

MoCLELLAN, J. This action is prosecuted by Mc-Ferrin against Parker and another on an instrument under seal executed by the defendants, wherein they promised to pay the amount sued for to the plaintiff. The pleas were : “1st. Non assumpsit. 2d. Failure of consideration in this that, the note sued on was given for a horse, which said horse was, at the time of said sale, unsound and worthless, which was not known to the defendants at the time of said purchase and the giving of said note and, “3d. Failure of consideration in this, that the note sued on was given for a horse which was warranted by the plaintiff to be sound, but which was in fact, at the time of the purchase, unsound and worthless , which was no! known to the defendants at the time of the giving of said note.” Plaintiff interposed a demurrer which is as follows : ‘ ‘ Comes the plaintiff by attorney and demurs to defendants’ pleas of warranty, and assigns for demurrer the following ground : that defendants in said plea fail to allege that said warranty was in writing.” The court sustained this demurrer to the 2d and 3d pleas. That is the only action of the court now presented for review. Counsel says that the 2d plea is one of implied warranty. This can not be. The law raises no implication of a warranty of soundness on the facts averred in it. This plea was clearly insufficient as a defense to the action; but neither that nor the 3d plea was open to the one objection taken by the demurrer to both of them. It is not essential to a warranty of soundness of chattels that it be in writing. See Thompson v. Harvey, 86 Ala. 519. The demurrer should have been overruled. A judgment to that effect will be here entered, and the cause will be remanded. Reversed, rendered in part, and remanded.