Kennebrew v. Southern Automatic Electric Shock Machine Co.

McOLELLAN, J. — There is a dictum in the case of Castleman v. Jeffries, 60 Ala. 380, 388, to the effect that there is no presumption as to what the law is in a State which is not of common law origin, the court saying: “No proof has been made of the laws of Texas bearing on this question. If Texas had had a common origin with this and other older States, we would presume the common law prevails there. But Texas did not have a common origin with these older States, as to which this presumption is indulged. Hence, we are left without proof, and without presumption as to what are the laws of Texas which govern the transmission of property, and the effect of marriage upon its title and enjoyment.” We say this was dictum because the question in the case, in connection with which the laws of Texas were spoken of, was decided according to the laws of Alabama, and this upon considerations which would have obtained even though different laws of Texas had been in proof. This dictum is opposed to the overwhelming weight of authority. It is almost universally held that where there is no proof of the law of another State, nor judicial knowledge of the origin of such State, which would raise up a presumption that the.common law prevails there, it will be presumed that the law of the forum in which the issue is being tried is the law of that State on the question under consideration. — Brown et al. v. Wright et ux. (Ark.) 21 L. R. A. 467, and the numerous authorities cited in note thereto, especially Sandmeyer v. Ins. Co., 2 S. Dak. 346 ; Southern Ins. Co. v. Wolverton Hardware Co., 21 L. R. Ann. 469, notes; Bradley v. Ins. Co., 3 Lans. 341; Garner v. Wright, 52 Ark. 385, s. c. 6 L. R. A. 715; James v. James, 81 Tex. 373 ; 3 Am. & Eng. Encyc. of Law, p. 539, n. 2; Gray v. Jackson, 12 Am. Rep. 1. This is an action for the recovery of the «price agreed by the defendant to be paid for certain electric shock ma [380] chines sold by plaintiff to defendant in the State of Louisiana. The defendant interposed the following plea : “The defendant for further answer to the complaint says chat the amount here sued for is the purchase price of certain goods, merchandise or chattels known as electric shock machines, which were manufactured by the plaintiff for a certain purpose, and that said machines were not suitable for the purposes for which they were manufactured, sold and warranted; and upmi discovery of their defects and inefficiency, defendant offered to return said machines to the plaintiff, wherefore defendant claims to recoup three hundred dollars, his damages in this behalf, from the amount -claimed by the plaintiff.” And issue was taken on this plea. There was no evidence adduced as to whether under the laws of Louisiana the sale by plaintiff imported a warranty of the adaption and usefulness of the machines sold to the purposes and uses for which they were sold ; and because of this, the judge below gave the affirmative charge for the plaintiff, there-being evidence of the facts laid in the plea. This was error. Under our law, the law of the forum, a warranty that the machines were reasonably fit for and adapted to the uses anl purposes for which they were made and sold was implied in the transaction, (Snow v. Schomacker Manufacturing Co., 69 Ala. 111) ; and on the principle stated above, this doctrine of our law, in the absence of proof of the law of Louisiana, should have been applied in the trial of the case below. Assuming the existence of such implied warranty, the evidence for defendant tended, to show a breach of it and consequent damages. The case presented by this plea and joinder of issue upon it should have been submitted to the jury, and not withdrawn from their consideration by the affirmative charge given at plaintiff’s instance. Reversed and remanded.