Carmack v. McKinney
Alabama Court of Appeals
Breach of Contract. Appeal from Lee Law and Equity Court. Heard before Hon. John D. Denson, Special Judge. Action by A. B. McKinney against W. L. Carmack, for breach of warranty. From a judgment sustaining demurrer to his plea, defendant appeals.
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Breach of Contract. Appeal from Lee Law and Equity Court. Heard before Hon. John D. Denson, Special Judge. Action by A. B. McKinney against W. L. Carmack, for breach of warranty. From a judgment sustaining demurrer to his plea, defendant appeals. The court erred in sustaining demurrers to defendant’s plea. — Bishop on Contracts, sec. 784. By refusal to accept the horse offered, plaintiff waived whatever rights he had under the contract. — 9 Cye. 436. A general demurrer is bad.— Section 5340, Code 1907; ■ Wilkie v. Johnson’s Laboratory, 132 Ala. 268. No brief reached the Reporter.
1Opinion of the CourtWalker, P. J.
To the complaint in this case counting upon an alleged breach of a warranty of soundness in a sale by the defendant to the plaintiff of a horse, a special plea was interposed which alleged: *409“That at the time of the alleged sale and warranty of the horse mentioned in the complaint, it was understood and agreed between plaintiff and defendant that, in case anything should prove to be the matter with the horse sold by defendant to plaintiff, the defendant was not to pay any money as damages to plaintiff if the horse should prove to be unsound, but it was expressly understood and agreed between…
2Cases cited7 opinions
- Fordyce v. HathornSupreme Court of Missouri · 1874
- McMurry v. StateSupreme Court of Alabama · 1844
- Armstrong v. TaitSupreme Court of Alabama · 1845
- Garrard v. ZachariahSupreme Court of Alabama · 1828
- McPherson v. WiswellNebraska Supreme Court · 1884
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3Cited by1 opinion
- Maples v. DouglassSupreme Court of Alabama · 1920