Security Finance Co. v. Kelly's Tire Shop , 216 Ala. 642 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The action is upon promissory notes by an indorsee against the maker. Defendant pleaded "in short, by consent, the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of action, to have effect as if so pleaded, and with leave to the plaintiff to give in evidence any matter which, if well pleaded, would be admissible in reply to such defensive matter, to have effect as if so pleaded." Under this plea the evidence of failure of consideration, or breach of warranty and rescission, was properly admitted. Moore v. Williamson, 210 Ala. 427,98 So. 201; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897; Austin v. Hunter, 193 Ala. 163, 69 So. 113; Converse Bridge Co. v. Collins, 119 Ala. 534, 24 So. 561.

In Hirschfelder v. Mitchell, 54 Ala. 419, cited by appellant, the case was tried on the "plea of the general issue in short by consent." Page 420. The court held: "Only the general issue was pleaded." Here the plea is expressly extended to matters which may be specially pleaded. No express consent to this form of pleading need appear in the record. When such plea is filed, and no objection, by appropriate motion or demurrer, is made thereto, and the cause proceeds to trial on the issue thus made up, it becomes a plea by consent. Objections to testimony do not go to the sufficiency of a plea.

Evidence for defendant tended to show the notes were given for the purchase of a radio to be used for demonstration purpose in the sale of other like instruments to be furnished by the payee to the maker; that, upon being installed according to directions and tested by persons competent so to do, the instrument would not operate. It was competent to show the knowledge and experience of witnesses in the installation and operation of such machines as going to the competency and weight of their evidence. In connection with evidence that the machine could not be made to operate, a witness could testify that it was worthless as a radio.

There was some evidence that the notes, or the first maturing one, was still in the possession of the payee, or a bank as payee's agent for collection, at the date of maturity. This made an issue for the jury, whether the plaintiff was a holder in due course. Plaintiff offered no evidence that the notes were acquired for value, or before maturity.

The notes being given for a machine to be thereafter delivered for purposes of sale, there was an implied warranty that the article was merchantable, and reasonably adapted to the purposes which gave it value. McCaa v. Elam Drug Co.,114 Ala. 74, 21 So. 479, 62 Am. St. Rep. 88; Gachet v. Warren,72 Ala. 288.

The letter from the maker to the payee saying: "After carrying out all instructions to the letter as to the instructions and handling of same, I am unable to give any kind of demonstration that would recommend it to a prospective buyer, and I am to-day notifying the bank that I will not take up note placed with them for collection. I am ready to crate and ship to you your machine, or turn it over to your representative on demand" — was evidence of a rescission and holding the machine thereafter as the property of the seller subject to his order.

It appears this letter was written and posted with proper address within a short time after receipt of the machine; within reasonable time after opportunity to test it. No objection was made to the carbon copy offered because secondary evidence without a predicate. It was not subject to the general objection "as being illegal testimony."

The copy of the written contract accompanying the execution of the notes and offered by the plaintiff was subject to objection as secondary evidence without accounting for the original. However, nothing in the contract as set out in the record would relieve the payee from an implied warranty as above stated.

Affirmative instructions requested by plaintiff were properly refused. Charges 3 and 4 refused to plaintiff ignored the evidence of rescission for good cause.

In the state of the evidence presented by the record, we find no reversible error in charges 21, 22, and 24 given for the defendant.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.