Carver Gin & Machine Co. v. Gaddy

Arnold, J., delivered the opinion of the court. In the summer of 1882 appellants sold a cotton gin to appellee and afterward took his note for two hundred dollars for the same. The gin was warranted as to the amount and quality of work it would do. Appellee failed to pay the note at maturity, and when sued on it in February, 1883, he defended on the ground that there was.a breach of warranty and failure of consideration, and that when this was discovered he notified appellants that the gin was [204] subject to their order. It is shown and not disputed that appellee retained the gin after its alleged failure to give satisfaction, and that he ginned a hundred and fifty or sixty bales of cotton on it during the ginning season of 1882-3. The testimony is conflicting as to the character of the gin and as to the quantity and quality of its work. The verdict and judgment were for the appellee. Appellants assign for error that the court erred in refusing the seventh instruction asked for by appellants and in giving the instructions for appellee and in overruling their motion for a new trial. Upon the undisputed facts of the case appellants were entitled to recover the actual value of the gin, if it were of any value at all. If there was a breach of warranty, appellee might have rescinded the contract by returning or offering to return the gin within a reasonable time after discovering the breach. But in doing this, good faith was required. If the contract were rescinded the gin thereby became the property of appellants and appellee could not use or employ it in any manner inconsistent with their rights. His notice or offer to hold it subject to their order was, in effect, withdrawn by his subsequent and continued use of the property. Dill v. Camp, 22 Ala. 249; McCulloch v. Scott, 13 B. Monroe 172. His continued use of the gin after a breach of warranty became manifest would render him liable, at least to the extent of the value that might be placed upon the property by a jury. The seventh instruction asked for by appellants — to the effect that if appellee kept the gin for a season, or part of a season, and ginned with it and did not till then offer to return it, he was bound for its value, notwithstanding there may have been defects in its construction — was inaptly drawn and properly refused. If given, it would have precluded appellee from using the gin that part of the season, however short a time it may have been, necessary to make a fair trial of the gin. The instructions given for appellee —some of which asserted in effect, that if there was a breach of warranty the consideration of the note had failed and the jury should find for the appellee, making no reference to a return or offer to return the property or to the use of the gin by him after the breach [205] —announced rules more favorable to the appellee than were warranted by the law and facts of the case. Reversed and remanded.