Gamble v. Adair et al.

Gamble v. Adair et al. Appeal from the Circuit Court of Tallapoosa. Tried before the Hon. HeNry A. Garrett, Special Judge. JohN A. Terkell, for appellant. A. & R. B. Babies, contra. This suit was brought by the appellees against the appellant, to recover the price of fertilizer sold by Orem & McElrath, who transferred their claims to the plaintiffs. The defendants pleaded the general issue and a special plea setting up that he contracted with the firm of Orem & McElrath for a high grade fertilizer, and that the sellers practiced a fraud upon him by the delivery of fertilizer of a very low grade, which was worthless and of no value to the defendant. There were demurrers to this special plea, but it -is not shown by the record that they was passed upon. The cause was, therefore, considered on appeal, as if issue was joined on the plea. The defendant, after the giving of evidence tending to establish the other averments of his special plea, offered to prove that the fertilizer delivered to him was worthless. On objection by the plaintiff to the introduction of this evidence, the court refused to allow the proof to be made, and the defendant duly excepted. There was judgment for the plaintiff. The defendant appeals. The court holds that the ruling of the trial court in excluding the evidence offered by the defendant tending to show that the fertilizer delivered to him was worthless was erroneous. For this error the judgment was reversed and the cause remanded. [MAJORITY — Head, J.] Opinon by Head, J.