Spalding Mfg. Co. v. Larren
Alabama Court of Appeals
Appeal from Circuit Court, Cleburne County; Hugh D. Merrill, Judge. Assumpsit by S. P. Larren against the Spalding Manufacturing Company. From a judgment for defendant, plaintiff appeals.
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Appeal from Circuit Court, Cleburne County; Hugh D. Merrill, Judge. Assumpsit by S. P. Larren against the Spalding Manufacturing Company. From a judgment for defendant, plaintiff appeals. The fourth count is as follows: Plaintiff claims of defendant the further sum of $115, damages for a breach of a written contract in the sale of a buggy by it to plaintiff on, to wit, March 24, 1916, and defendant agreed to warrant same against all defective material and workmanship, and agreed to give plaintiff a written warranty to this effect,' and to keep said buggy in good shape for five years free of…
1Opinion of the CourtBbown, P. J.
[1 ] It does not appear from the averments of the fourth count with certainty to a common intent whether the plaintiff relies on a warranty and a breach thereof or on a contract to give a warranty and a breach of such contract. The averments predicated on the theory of the existence of the warranty are clearly repugnant to the other theory stated, rendering the count lacking in that degree of certainty requisite to present an issue of law or fact and subject to the objection pointed out in the demurrer, which-was erroneously overruled. Sibley v. Barclay, 14 Ala. App. 422, 70 South. 201; Posey…
2Cases cited7 opinions
- Prestwood v. CarltonSupreme Court of Alabama · 1909
- Harton v. BelcherSupreme Court of Alabama · 1915
- Tabor v. PetersSupreme Court of Alabama · 1883
- Weller & Co. v. CampSupreme Court of Alabama · 1910
- Bowdon Lime Works v. MossAlabama Court of Appeals · 1915
2 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Atlantic Coast Line R. Co. v. KellyAlabama Court of Appeals · 1918