Plea 4 was a good plea of recoupment. It alleged plaintiff's warranty that the cow, for the purchase price of which the note declared upon in plaintiff's complaint had been given in part, was sound, that in fact she was unsound, and, in effect, that by reason of her unsoundness she had died and had been lost to defendants. On proof of this counterclaim defendants were entitled to recoup in damages to the extent of the difference between the value of the cow in her unsound condition and what her value would have been had she been as warranted. Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4. It did not affect the sufficiency of the counterclaim thus stated that the plea alleged other special elements of damage not recoverable as general damages for a breach of warranty of soundness without more. We assume that a sound cow will give sound milk, if any; but to warrant a cow as sound does not of itself imply that she will give any milk. There is no allegation that the cow was bought or sold as a milch cow, or warranted to give milk, and we cannot assume that such was the case. There being, then, no allegation of warranty covering the special damages, alleged to have been suffered on account of the loss of milk, such damages were not recoverable under this plea in the face of proper objection, and, as will appear, the damages claimed on account of trouble, inconvenience, and expense in and about providing for, maintaining, and keeping the cow in her unsound condition were in like case; but the remedy for their elimination was not by demurrer to the counterclaim. The court, in the present shape of plea 4, might have stricken the allegation of the special damages referred to; but the rule here is not to predicate reversible error of the action of the court against the motion in such case, for the reason that defendant may protect himself against injurious consequences, in case of error, by objections to the evidence, by exceptions to the court's oral charge allowing recovery, and by request for special instructions to the jury. Bixby-Theisen Co. v. Evans,174 Ala. 571, 57 So. 39.
Plea 5 was bad, for that, alleging fraud that would warrant a rescission, and claiming damages on account of such fraud, it failed to aver a return of the animal or an offer to return within a reasonable time, that is, with due promptitude, after discovery of the fraud in her sale, or some sufficient excuse for such failure. Beatty v. Palmer, 196 Ala. 67, 71 So. 422; Ansley v. Bank of Piedmont, 113 Ala. 467, 21 So. 59, 59 Am. St. Rep. 122; Bessemer Ice Delivery Co. v. Brannen, 138 Ala. 157,35 So. 56. It is of no avail in avoidance of this defect in the plea that the evidence for defendants tended to show an offer to return. Proof without allegation is of no more consequence than allegation without proof.
The averment of fraud in the fifth plea was sufficient. 7 Mich. Dig. p. 499, § 31.
Citing authorities, we said in Mattingly v. Houston, 167 Ala. 167,52 So. 78, that:
"The method of adopting the averments of preceding counts has been tolerated by this court, but has never been approved as an admirable habit in pleading. Specific reference from one count to another is a different thing. It is not only permissible according to the precedents, but often proper, in order to avoid unnecessary repetition and prolixity, that one count should refer specifically to another."
We do not understand that anything to the contrary was said in Varnon v. Nabors, 189 Ala. 464, 66 So. 593.
The questions asked with a view to eliciting the fact that the cow, while in the possession of defendants under their contract of purchase, gave milk that was clotted, bloody, and unfit for use, and that defendants had been at trouble and expense *Page 112 in caring for the cow pending her sickness, would have been proper under plea 5, if amended to cure the defect we have indicated, and the evidence as to the milk was admissible under plea 4 as going to prove that the cow was unsound and her value, or lack of value, at the time of her purchase; but none of this evidence was admissible for the purpose of swelling the damages recoverable under plea 4. Our modern cases hold that such elements of damage are recoverable only where fraud or bad faith is alleged and proved, and that, in the absence of fraud or bad faith, the measure of damages for a breach of warranty, as we said in the outset, would be, in this case, the difference between the value of the cow in her unsound condition and what her value would have been had she been as warranted. Herring v. Skaggs, supra; Jones v. Ross, 98 Ala. 448,13 So. 319; Bessemer Ice Delivery Co. v. Brannen,138 Ala. 157, 35 So. 56, and cases there cited. It seems that a different rule prevailed in cases of the sale of slaves, and authorities tending so to show have been cited on the brief for appellee; but the cases cited next above establish a different rule for the case of sales of articles of trade or commerce, and it may be that the duty to care for a slave as a human being, whose life did not depend upon the discretion of his master, had something to do with the establishment of the rule shown by our old adjudications in such cases. At any rate, the rule now appears to be as we have stated it, and it seems the more logical, since the liability in a case of warranty is measured by the terms of the contract.
And in any case the special damages alleged in these pleas should, in respect of the time of their accrual, be limited to a period within which there might be a reasonable demonstration of the remediless nature of the unsoundness and the inutility of efforts to effect a cure. Beyond this the recoupment of damages in cases of this character should not be allowed to go.
The court refused a charge requested by plaintiff to the effect that defendants were entitled to no recoupment if, after discovering the unsound condition of the cow, they retained her, made no offer to return her, nor "within a reasonable time" made any effort to notify plaintiff of the fact that she was not sound. The facts here hypothesized would not of their own force and effect conclude against the counterclaim stated in plea 4, but whether, in the circumstances, they reflected on the bona fides of the counterclaim there stated, may have been a question for the jury. The effect on the counterclaim alleged in plea 5 of a failure to return, or offer to return, the cow, has already been stated.
The petition for certiorari for a removal of the cause from the municipal to the circuit court showed that there had been no proper judgment against the defendants by default or otherwise. The averment was that defendants had not been served, had had no notice of the suit, and no notice of the judgment rendered by the municipal court until the time for an appeal had expired. In all cases the law relating to appeals and certioraris from the courts of justices of the peace apply to appeals and certioraris from the municipal court. Local Acts 1915, § 20, p. 236. The certiorari operated as an appeal, and the cause stood for trial de novo in the circuit court. Code, § 4720. There was no error in overruling the motion to quash the writ.
We cannot find warrant for disposing of the appeal on the theory that either party was entitled to the general charge, and hence that errors were of no consequence. The evidence going to the merits of the cause was in conflict. It results that the cause must be tried again.
Reversed and remanded. All the Justices concur, except ANDERSON, C. J., who holds that the circuit court erred in overruling the motion to quash the certiorari.