Eastern Granite Roofing Co. v. Chapman & Co.

TYSON, J. The complaint contains three counts. The first declares on an open account; the second, .on a stated account; and the third for goods,- wares and merchandise sold. A number of special pleas were filed by defendant. A demurrer was sustained to several of them, but overruled as to the eighth. This pleas, as we read it, was a plea in bar and attempted to set up as a defense a bread) of warranty of the quality of the roofing sold by plain [443] tiffs, as manufacturers, to the defendants. Whether the warranty relied upon is an express or implied one does not clearly appear. But whether the one or the other for the purpose of determining the sufficiency of the plea raised by the demurrer interposed is unimportant. In either event the plea should be one of set off or recoupment, in reduction of plaintiff’s recovery and not in bar of the action.—Frith v. Hollan, 133 Ala. 583; Dalton v. Bunn, 137 Ala. 175; 24 Am. & Eng. Ency. Law (2d ed.), 1158. And when a breach of warranty is relied upon, the plea must aver a return of the property or an offer to do so within a reasonable time after a discovery of the fraud, unless it was valueless. The mere breach of warranty would not prevent the. title to the property from vesting in the purchaser by virtue of the contract of purchase. In other words “unless there ivas a rescission of the sale or unless the article purchased was valueless, the purchaser could not resist payment of the entire purchase money of the defective article. * " * To entitle the purchaser to avoid the payment of the purchase money entirely upon the ground of fraud or breach of warranty, where he holds on to the property, it is not sufficient that it is valueless for the particular purpose for which it was bought; it must be intrinsically of no value.”—Jemison v. Woodruff, 34 Ala. 143, 146. See also Pacific Guano Co. v. Mullen, 66 Ala. 582; Young v. Arntze, 86 Ala. 116. Of course, the value of restoration or offer to do so has no application where the use of the property in testing its qualities destroys it or renders it impossible to return it to the seller. — 15 Am. & Eng. Encyc. Law, (2d ed.), 1256 and note. Testing the plea under consideration by these principles, it is clear that the demurrer interposed to it should have been sustained. It may be that the purchaser is not bound to rescind the contract of sale, but may retain the article purchased and prove its real value and abate the recovery pro tanto.—Frith v. Hollan, supra, and cases there cited. But this is clearly not the purpose of the plea. [444] With the plea eliminated, it is unnecessary to review 'the ruling of tbe court in striking the replications interposed thereto. Nor do we regard it necessary to review any of the other assignments of error. Reversed and remanded.