Brock v. Forbes

TYSON, J. This was an action of detinue brought by the plaintiff against the defendant to recover possession of a piano. The plaintiff’s title to the piano was that of vendor, having made a conditional sale of it to the •defendant, reserving title until the purchase money was paid. The defendant, among other pleas, filed a special plea ■of recoupment in which he claimed $300 damages for a breach of warranty in the sale of the piano. It is alleged in said plea that in December, 1891, plaintiff sold him the piano sued for in this case, and warranted that the piano was one of the best made and that “he could or would guarantee it,” for which defendant agreed to pay him $525, giving his notes for $340, having paid the remainder and more, otherwise. That there was a breach -of said warranty in this, that the said piano, although it has been carefully used and treated during the time it has been in defendant’s possession, will not now make music except in clear, dry weather, and part of the keys in damp weather or wet and rainy weather will make no sound; to the damage of the plaintiff in the sum of $300, winch defendant hereby offers to recoup against the balance that the court may find due on the purchase money and defendant claims judgment for the excess. This plea was demurred to by the plaintiff, but the court overruled the demurrer. Since the plaintiff took issue upon the plea and replied specially and the defendant prosecutes this appeal, we [322] are not called on to pass upon its sufficiency. However,, it was held in Whitworth v. Thomas, 83 Ala. 308, that in detinue or the corresponding statutory action there can he no set-off nor recoupment of damages. See also 22 Am. & Eng. Ency. Law, 240. To this plea the plaintiff replied specially, first, that the defendant’s alleged claim for damages for breach of warranty as alleged was barred by the statute of limitations of three years, and, second, that his claim for damages for breach of warranty, as alleged, is barred by the statute of limitations of six years. The defendant took issue upon these two replications. The evidence shows undispufedly that the defendant’s cause of action arose against the plaintiff: as alleged in his plea in December, 1891, nearly seven years before the institution of this suit. So under the issue tendered bv these replications the plaintiff was entitled to have the court charge affirmatively to find a verdict in his favor. The ei’rors complained of relate to the exclusion of evidence upon the question of breach of warranty vel non and to written charges given at the request of the plaintiff and refused to the defendant. ■ Conceding that error was committed by the court in respect to all these matters, it can in no wise affect the right of the plaintiff to have had, if reqxxested, the affirmative charge xxpon the two replications. If error, therb was no injxxry done of which the defendant can complain.—Glass v. Mayer, 124 Ala. 332, and authorities therein cited. There is no objection to the jxxdgment. Under it the defendant may deliver the piano and pay damages for its detention as assessed by the jxxry, or he may within thirty days pay the xxnpaid balance of the purchase price, to-wit, $175, as ascertained by the jxiry, and interest thereon,'and the costs of the suit, wherexxpon no execxxtion or other process will issue against him. This is in conforxxxity to the statxxte.—Code, § 1477. Affirmed.