
    Brock v. Forbes.
    
      Action of Detinue.
    
    1. Action of detinue: plea of recoupment: statute of limitations. In. an action of detinue, where the plaintiff claims title to-the property sued for as vendor under a conditional sale, in which the purchase money had not been paid, and the defendant interposes a plea of recoupment in which he claims damages for the breach of warranty in the sale of the property sued for, and to this plea there is a replication setting up that the defendant’s alleged claim for damages for the-breach of warranty, as alleged in the plea, was barred by the statute of limitations and issue is joined on such replication, if the facts show that the defendant’s cause of actions as alleged in the plea for the breach of warranty was barred by the statute oE limitations, the plaintiff is entitled to the-general affirmative charge in his favor.
    2. Pleading and practice; when error without injury.—In a case where there was several rulings upon the evidence, but upon the undisputed and competent evidence in the case, the plaintiff was entitled to the general affirmative charge in his behalf, error in the rulings upon the evidence is without' injury and furnishes no ground for a reversal of the judgment rendered in favor of the plaintiff.
    3. Action of detinue; sufficiency of judgment.—In an action of detinue brought by a vendor in a conditional sale, where, -in compliance with a suggestion made- by the defendant under the statute, (Code, § 1477), the jury ascertains the unpaid balance due upon the property sued for, a judgment upon such verdict, which adjudged that the plaintiff is entitled to. recover the property sued for, describing it, or the amount of the debt together with the value of the hire and detention as fixed by the jury and the costs, and then further orders that if the debt ascertained to be due by the jury, together with interest and costs be “paid within thirty days, no execution or other process shall issue upon this judgment,” is sufficient and free from objection.
    Appeal from tbe City Court of Anniston.
    Tried before tlie Hon. James W. Lapsley.
    This was an action of detinue brought by the appellee, E. E. Forbes, against W. J. Erode, to recover possession ■of one Ivers & Pond piano, together with the value and use thereof during the detention. The suit was instituted on November 15, 1898. The material facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.
    The trial was had upon issue joined upon the replications filed to the plea of recoupment. The defendant ■suggested, under the provisions of section 1477 of the Code, that the action was brought by the plaintiff as vendor who had made a conditional sale,- reserving title until the entire purchase money should be paid, and he asked that the jury be required to ascertain the unpaid balance due on the piano.
    Upon the submission of the cause the jury returned a verdict which was in words and figures as follows: “We, the jury, find for the plaintiff. We find the piano to have been worth on the 15th day of November, 1898, [the date of the institution of the suit], $300. We find the hire of the piano from the 15th day of November, 1898, to have been $2.50 per month, amounting to $2(5.25 up to date. Balance of debt due plaintiff $175.65.” On this verdict the court rendered the following judgment: “It is therefore considered bv the court that the plaintiff have and recover of the defendant the property sued for, to-wit, one Ivers & Pond pi'ano, style W. Wal., No. 10,405, or the sum of one hundred seventy-five and (55-100 dollars, the amount of the debt; also the sum of twenty-six ancl 25-100 dollars damages for the hire or detention thereof, together Aviththe costs in this behalf expended, for which let writs of seizure and execution issue. It is therefore considered by the court that the unpaid balance of the purchase price of the piano sold is the said sum of one hundred and sevnn ty-five and 65-100 dollars, so ascertained by the jury, and it is therefore ordered by the court that if the debt so ascertained, interest and costs be* paid Avithin thirty days no execution or other process shall issue on this judgment.”
    The defendant appeals, and assigns as error the several ruling of the trial court, to which exceptions were reserved.
    
      A. P. Agee, for appellant,
    cited Bryant v. Crosby, 58 Amer. Dec.. 707; Smith v. Richards, 13 Peters, 26; Ship-, ley v. Bowen, 122 U. S. 596; Riddle v. Webb, 110 Ala. 599; Moses v. Katsenberger, 84 Ala. 95; Marshall v. 1food, 16 Ala. 806; Perry v. Johnston, 59 Ala. 648; Young v. Amts, 86 Ala. 116; Talbot Paving Co. v. Borman, 27 L. 14. A. 96.
    W. P. Acker, contra,
    
    cited Barnett v. Pollard, 2 Ala. 184; Sled (jé v. Scott, 56 Ala. 202; Claghorn v. Lingo, 62 Ala. 230; Tabor v. Peters, 70 Ala. 96; Hughes v. Anderson, 68 Ala. 280; Ming v. State, 73 Ala. 1; 11 Encyc. PI. & Pr., 137-9.
   TYSON, J.

This was an action of detinue brought by the plaintiff against the defendant to recover possession of a piano. The plaintiff’s title to the piano was that of vendor, having made a conditional sale of it to the •defendant, reserving title until the purchase money was paid.

The defendant, among other pleas, filed a special plea ■of recoupment in which he claimed $300 damages for a breach of warranty in the sale of the piano. It is alleged in said plea that in December, 1891, plaintiff sold him the piano sued for in this case, and warranted that the piano was one of the best made and that “he could or would guarantee it,” for which defendant agreed to pay him $525, giving his notes for $340, having paid the remainder and more, otherwise. That there was a breach -of said warranty in this, that the said piano, although it has been carefully used and treated during the time it has been in defendant’s possession, will not now make music except in clear, dry weather, and part of the keys in damp weather or wet and rainy weather will make no sound; to the damage of the plaintiff in the sum of $300, winch defendant hereby offers to recoup against the balance that the court may find due on the purchase money and defendant claims judgment for the excess. This plea was demurred to by the plaintiff, but the court overruled the demurrer.

Since the plaintiff took issue upon the plea and replied specially and the defendant prosecutes this appeal, we are not called on to pass upon its sufficiency. However,, it was held in Whitworth v. Thomas, 83 Ala. 308, that in detinue or the corresponding statutory action there can he no set-off nor recoupment of damages. See also 22 Am. & Eng. Ency. Law, 240.

To this plea the plaintiff replied specially, first, that the defendant’s alleged claim for damages for breach of warranty as alleged was barred by the statute of limitations of three years, and, second, that his claim for damages for breach of warranty, as alleged, is barred by the statute of limitations of six years.

The defendant took issue upon these two replications. The evidence shows undispufedly that the defendant’s cause of action arose against the plaintiff: as alleged in his plea in December, 1891, nearly seven years before the institution of this suit. So under the issue tendered bv these replications the plaintiff was entitled to have the court charge affirmatively to find a verdict in his favor.

The ei’rors complained of relate to the exclusion of evidence upon the question of breach of warranty vel non and to written charges given at the request of the plaintiff and refused to the defendant. ■

Conceding that error was committed by the court in respect to all these matters, it can in no wise affect the right of the plaintiff to have had, if reqxxested, the affirmative charge xxpon the two replications. If error, therb was no injxxry done of which the defendant can complain.—Glass v. Mayer, 124 Ala. 332, and authorities therein cited.

There is no objection to the jxxdgment. Under it the defendant may deliver the piano and pay damages for its detention as assessed by the jxxry, or he may within thirty days pay the xxnpaid balance of the purchase price, to-wit, $175, as ascertained by the jxiry, and interest thereon,'and the costs of the suit, wherexxpon no execxxtion or other process will issue against him. This is in conforxxxity to the statxxte.—Code, § 1477.

Affirmed.  