
    (79 South. 631)
    BONDS v. MARSH et al.
    (8 Div. 475.)
    (Court of Appeals of Alabama.
    May 28, 1918.)
    Sales <©=>179(4) — Breach by Seller —Acceptance and Retention oe Goods.
    Id an action for breach of contract in the sale of an automobile by the delivery of a secondhand one instead of a new car, where evidence supported pleas that plaintiff retained the car after discovering that it was secondhand and did not offer to return it, but paid the balanca of the purchase price, defendants were entitled to the general affirmative charge.
    Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
    Action by W. M. Bonds against J. B. Marsh and another for breach of contract. Fr<»n a judgment for defendants, plaintiff appeals.
    Affirmed.
    Wm. C. Rayburn, ,of Guntersville, for appellant. Street & Bradford, of Guntersville, for appellees.
   SAMFORD, J.

The complaint was in two counts, claiming damages for breach of contract in the sale of a Ford automobile, alleging compliance on the part of the plaintiff and breach by defendants, by a delivery by them of a secondhand car, which had been used, and considerably damaged and worn, instead of a new car as contracted for.

The defendants, besides the general issue, filed three special pleas: (2) That plaintiff accepted the car that was delivered to him as a performance by defendants of his part of the contract; (3) that, after discovery by the plaintiff that the car delivered to him was not a new car, plaintiff retained said car and did not offer to return said car to defendants; and (4) that, after discovery by plaintiff that the car was not a new one,- plaintiff voluntarily paid to defendants the balance of the purchase price thereof. There were no demurrers to these pleas. With the issues as thus made, plaintiff testified that, two days after the sale and delivery, he discovered two scars on one of the tires about three-fourths of an inch long, that the position of the horn had been changed, and that he had been delivered a secondhand .car; that, at the time of the purchase, he paid one-half cash and gave his note for the balance, and, with the knowledge of the defects testified to, he voluntarily paid the balance due on the purchase price. There was no evidence that 'the car was considerably damaged and worn, except the testimony as to the cut on one tire and the change of the horn. It was also shown, without dispute, after discovery by plaintiff that the car delivered to him was not a new car, plaintiff retained the car. and did not offer to return it to defendants.

Under the issnes as made by the pleadings, the defendants were entitled to the general affirmative charge. This being the case, it becomes unnecessary to pass upon the various rulings of the court, as, if the trial court was in error, such error would be without injury. Travelers’ Ins. Co. v. Lazenby, 80 South. 25, Flowers & Peagler v. Smith Lumber Co., 157 Ala. 505, 47 South. 1022; L. & N. v. Johnson, 128 Ala. 638, 30 South. 580.

We find no error in the record, and the judgment is affirmed.

Affirmed. 
      
      Post, p. 549.
      
     