The assignments of error referred to in the opinion are as follows: (11) "The court below erred in sustaining the objection of the defendant to the following questions propounded by plaintiff to witness Reuben Millsap: In any of your conversations with reference to that horse, did you ever warrant that horse?" (12) "Same witness: Did he, the defendant, in that conversation with you claim that you had warranted or guaranteed Appeal from Circuit Court, Escambia the horse or make any complaint of that County; A. E. Gamble, Judge. kind?" (13) "Same witness: Did defendant Action by Jeff Millsap against O. M. in that conversation make any complaint

price paid for the article and interest there on from the date of purchase.

as to a breach of warranty as to the soundness of that horse or state to you in that conversation that you had represented to [5] To effect a rescission for a breach of him that the horse was sound or unsound?" | warranty, the purchaser must, within a rea(14) "Same witness: In this conversation sonable time after the discovery of the you had with defendant, on his visit to Ever- breach, return the property to the seller ungreen in April following this trade, did he less he has a good excuse for not doing so at that time say anything about you having and, ordinarily, what is a reasonable time warranted this horse to be sound, when as a in any particular case is a question for the matter of fact, he was unsound?" (15) jury. 30 Am. & Eng. Ency. Law, pp. 200, "Same witness: In this conversation with 201. defendant, did he then complain of any false representation on your part as to the soundness or unsoundness of that horse?" (16) "Did this defendant in the conversation referred to, or any other conversation, make any claims to you of false representations you had made with reference to the soundness or unsoundness of this horse?" (23) "Overruling objection of plaintiff to the following question propounded by defendant to the witness Sam Sowell: In your opinion, Mr. Sowell, what was the matter with that horse?"

Hamilton & Crumpton, for appellant. Leigh & Leigh and E. L. McMillan, for appellee.

DE GRAFFENRIED, J. [1] 1. A warranty, in the sale of a chattel, is a collateral undertaking on the part of the seller as to the quality of or title to the subject of the sale. It may be express or implied. It is express when made so by the agreement of the parties; implied when the law derives it by implication or inference from the nature of the transaction or the relative situation of the parties. 30 Am. & Eng. Ency. Law, pp. 128, 129.

[2] As a warranty, express or implied, is a contract, the good faith of the seller in making it is not material. In actions for breach of warranty, the only questions are: Was there a contract of warranty? If so, has there been a breach? And if so, the amount of damages suffered by the purchaser thereby. Scott v. Holland, 132 Ala. 389, 31 South. 514.

[3] It is not necessary, as a condition precedent to a right of action for the breach of a warranty, that the article shall be returned to the seller and the seller be put in statu quo, unless the contract, by its terms, requires the return of the article if it should prove not to be as warranted. Unless the contract requires the return of the article, or some other express condition, by the terms of the contract, is attached to it, the purchaser may retain it and sue for his damages for the breach of the warranty and the measure of his damages is ordinarily, in such case, the difference between the value of the article as it was warranted to be and its actual value.

[4] The purchaser may, however, upon a discovery of a breach of the warranty, repudiate the contract of sale and sue for his

[6] 2. There is a clear distinction between an action for a breach of warranty and one for deceit in the sale of a chattel; in the first case the action is ex contractu and in the second, ex delicto. 30 Am. & Eng. Ency. Law, p. 129; Scott v. Holland, supra. If the action is for deceit in the sale of a chattel, mere proof of the breach of a warranty is not sufficient. Scott v. Holland, supra.

[7] Where the purchaser relies upon deceit in the sale of a chattel as his right of action, he must show that he returned the article purchased within a reasonable time after the discovery of the deceit, or a sufficient

legal excuse for his failure so to do, as a condition precedent to the suit. He cannot hold to the fruits of the contract with one hand and repudiate the contract with the other. "A party who seeks the rescission of a contract on the ground of fraud must act with vigilance and promptness on the discovery of it by an offer to return the property within a reasonable time, if the parties live at a distance from each other; or by an actual redelivery of it, or a tender with a view to redelivery, if they reside near each other, and the property is susceptible of easy transportation." Dill v. Camp, 22 Ala. 249.

"A contract, obtained by misrepresentation, may be avoided, or an action for damages sustained, though the asserting party may not know the statement is false. It is as much a fraud at law to affirm as true what is untrue, though not known to be so, as to assert what is known to be untrue." Jordan & Sons v. Pickett, 78 Ala. 331; Code 1907, § 4298.

[8] 3. The various pleas setting up a contract of warranty and its breach, and the pleas setting up deceit in the sale, contain all of the essential averments required of complaints in such actions by the Code, and the other pleas to the complaint are in literal compliance therewith. The pleadings, therefore, substantially complied with the requirements of the Code, and, reading them in the light of the principles of law above announced, we are of the opinion that the court committed no error in overruling defendant's demurrers to them. Some of the questions which the defendant undertook to raise by his demurrers to the pleas were raised by the evidence, and, under the evidence, were issues for the jury under the charge of the court.

-

charge of the court by the defendant. Pre- | 2. INTOXICATING LIQUORS (§ 219*)-PROHIBITION LAW INDICTMENT - ALLEGATIONS sumptively the court correctly charged the NAME OF DONEE. jury with reference to them and the jury, under the evidence, decided the issues adversely to appellant.

Carmichael Act (Acts 1909, p. 9) § 3, makes it unlawful to sell, give away, or otherwise dispose of, whisky, etc. Fuller Act (Acts 1909, p. 63) § 292, provides that any indictment charging that prohibited liquors were sold, kept for sale, "or otherwise disposed of," need not allege the person to whom such sale "or other disposition" was made; and section 31 following the word "sold," etc., when used in provides that the term "otherwise disposed of" any indictment, shall include giving away, etc. Held, construing the several related acts together, that an indictment for giving away whisky, in violation of section 3 of the Carmichael act, need not allege the name of the person to whom the gift was made.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 237-239; Dec. Dig. 219.*]

Appeal from City Court of Anniston; Thomas W. Coleman, Judge. William Grace was convicted of violating the prohibition law, and he appeals. Affirmed.

[10] 4. There is no merit in assignments of error Nos. 11, 12, 13, 14, 15, and 16. The eleventh assignment of error is predicated upon the exclusion by the court of a question put to a witness and answered by the witness before the objection to the question was made. The court sustained the objection to the question, but did not exclude the answer of the witness to the question. The question excluded was a question to a witness; his answer was evidence for the jury. The answer remained as evidence before the jury, and if there was error it was harmless. [11] The twelfth, thirteenth, fourteenth, fifteenth, and sixteenth assignments of error call in question the legality of the action of the court in refusing to allow Reuben Millsap, who, as the agent of the plaintiff, is alleged to have conducted the negotiations which resulted in the sale of the horse, to as follows: "It wouldn't make any difference The part of the oral charge excepted to is testify that, after the death of the horse, whether it was his whisky, or whether he the defendant did not, in certain conversa- got it from somebody else. If he furnished tions had with the witness, claim that he, it, it wouldn't make any difference about on behalf of plaintiff, had warranted the the money consideration. If Grace got the horse to be sound or had falsely represented whisky from somebody else for them, and him to be sound. This testimony was not put it up on the shelf for them, that would offered to contradict any statement made by be a violation of law, just as much as if he the defendant while he was on the witness owned the whisky himself. In other words, stand as a witness. It would have, if al- the prohibition law prohibits a person from lowed, thrown no light on the questions in- selling whisky, or giving it away, or furvolved in the case, and was properly ex-nishing it or procuring it for a man from ancluded. other person."

[12] 5. Section 3960 of the Code provides that "one need not be an expert or dealer in the article, but may testify as to its value, if he had an opportunity for forming a correct opinion." O. M. Wolfe bought the horse from the plaintiff and had possession of him from that time until he died. The court therefore committed no error in permitting him to testify as to its value.

6. The answer of the witness to the question made the basis of assignment of error No. 23 was certainly of no injury to appellant.

There is no error in the record, and the judgment of the court below is affirmed. Affirmed.

Knox, Acker, Dixon & Blackmon, for appellant. R. C. Brickell, Atty. Gen., for the

State.

PELHAM, J. [1] On the trial of the defendant for a violation of the prohibition laws, defendant reserved an exception to that part of the court's oral charge instructing the jury that giving away whisky was a violation of the law. Under the terms of the prohibition laws, there can be no doubt of the correctness of the court's charge. Acts 1909, p. 9, § 3. The giving away, or sale, shown by the evidence in this case brings it strictly within the letter and spirit of the prohibited acts intended to be prevented, and the facts utterly repudiate the idea that the case falls within the exception applying to gifts by one at his private residence, as an act of hospitality in ordinary social intercourse. The whisky was delivered, according to the state's witness, in the back yard or shed adjoining a poolroom, the money being paid to the defendant in the poolroom; and the defendant, who denies in toto this act of hospitality, can hard[Ed. Note.-For other cases, see Intoxicating ly be fancied by the most imaginative as in Liquors, Cent. Dig. § 155; Dec. Dig. § 156.*] the role of a host in his private residence,

(1 Ala. App. 211)

GRACE v. STATE. (Appellate Court of Alabama. June 6, 1911.) 1. INTOXICATING LIQUORS (§ 156*)-OFFENSES -GIVING AWAY LIQUOR.

Under Carmichael Act (Acts 1909, p. 9) § 3, making it unlawful to "sell, offer for sale, give away," etc., the liquor described in section 1, including whisky, the giving away of whisky is an offense.

in ordinary social intercourse, dispensing and a lot of household goods received by the hospitality.

fully stipulate, either expressly or by im- | fore any damage was sustained. It would plication, that it will assume no liability as seem to involve a withholding of the due a warehouseman at a "flag station," where effect to be accorded to the rulings in the it has no depot nor agent; and that when cases above cited to decide that, under such the consignee is fully advised, at the time a stipulation as that contained in the conof shipment, that the company has no depot tract of shipment in this case, anything more nor agent at such station, and it is not than placing the car on the side track at the shown that the exigencies of its business re- point of destination and detaching it from quired that it should have an agent or depot the train could be required to make a good at that place, the liability of the company delivery and to relieve the carrier from all as a common carrier terminates with the further responsibility on account of the shipsafe delivery of the goods on the side track ment. Authorities in other jurisdictions at that point, and it assumes no liability as support the conclusion that what was done a warehouseman. In the opinion in that in this case constituted a complete delivery case, it was said: "The delivery of the car under such a stipulation. Allam v. Pennload of corn on the side track at 'Smith's sylvania R. Co., 183 Pa. 174, 38 Atl. 709, 39 Mills' terminated the liability of the appel- L. R. A. 535; Hill v. St. Louis Southwestern lant. It would be unreasonable to require R. Co., 67 Ark. 402, 55 S. W. 216; 4 Elliott the railroad company to employ a special on Railroads (2d Ed.) § 1521. Under the agent to keep the corn in further custody, un-authorities, it is not to be doubted that, in less there was an agreement, express or the circumstances of the shipment involved implied, to do so. When the consignee was informed that there was no agent of the company there, he was virtually told that there would be no custody of the goods by the carrier after arrival. The shipment, after such knowledge, was an assent, on the part of the shipper, to the implied conditions."

In its disposition of that case, the court clearly recognized the right of the shipper and the carrier, in the circumstances attending a shipment to such a destination, to determine by contract what should constitute a delivery by the carrier; and, in the absence of any specific provision on the subject in the contract of shipment, it was implied, from the mere fact that the shipper knew that the carrier had no agent at the "flag station" to which the car of corn was shipped, that he agreed that a safe delivery of the car on the side track at that point should have the effect of terminating the liability of the railroad company as a carrier, and of exempting it from any liability as a warehouseman. When the same case was before the court on a second appeal (South & North Ala. R. Co. v. Wood, 71 Ala. 215, 46 Am. Rep. 399), it was again recognized that, so far as any question of liability on the part of the carrier to the shipper was concerned, its control over the car and its contents was to be regarded as having ended when the car was placed on the side track at the point of destination, and that there was no liability on its part for any loss of the contents of the car thereafter occurring.

in the case at bar, the parties could by contract provide that what was in fact done by the carrier at the point of destination should constitute a good delivery, and that the carrier could decline to assume any duty or responsibility as a warehouseman after the carriage contracted for should be completed. [2] But, on the facts of this case, the carrier is not put to a reliance, for the support of its defense, upon the claim that what it did constituted a complete delivery under the terms of the contract of shipment. The consignee cannot take charge of the goods as completely delivered and continue to hold the carrier to a liability, either as carrier or as a warehouseman. This is what the consignee in the case at bar is undertaking to do. When the car containing his goods was left on the siding at the point of destination, he assumed complete control of it and of its contents. Without the carrier or any one representing it having anything further to do with the matter, he proceeded to unload the goods, and when, to suit his own convenience, he did not complete the unloading that day, he did not, actually or constructively, leave the car or its contents in the charge or control of the carrier, but continued his control by locking the car with a lock of his own. If thereafter any one for the carrier had desired to protect the contents from the damage from rain to which they were exposed by reason of the leaky condition of the roof of the car, entrance to the car would have been prevented by the precaution taken by the consignee to maintain his own control of the situation. What [1] In the case at bar, there are the addi- he did amounted to an acceptance by him of tional features, absent from the above-men- the leaving of the car on the siding as a tioned case, of the express stipulation in the complete delivery. The consignee was encontract of shipment that the property should titled to but one delivery by the carrier. be at the owner's risk, after the car should By resuming control of his goods, he rebe detached from the train, upon its delivery | leased the railway company from any furon the siding at the point of destination, ther responsibility, whether as a carrier or and that the consignee assumed actual custody and control of the goods shipped, and

as a warehouseman. Ayres v. Morris & Essex R. Co., 29 N. J. Law, 393, 80 Am. Dec.