The trial court clearly erred in allowing plaintiff to put in evidence the copies of the warehouse receipts, without laying any predicate therefor. Thomas v. Williams, 170 Ala. 522,54 So. 494; A. G. S. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173,4 So. 356. However, as the receipts were useful only to show a constructive delivery of the apples to defendants, by delivering them to the warehouseman subject to defendants' order, and as that delivery was sufficiently shown by the written correspondence of the parties and other evidence, and there was in fact no controversy thereabout, the error was not prejudicial to defendants.
Plaintiff's evidence made out a prima facie case of sale, delivery, and indebtedness, and the issue reverted to defendants' special plea, setting up breach of an implied warranty that the apples were sound and merchantable, and of a quality to keep a reasonable time. The plea seems to be intended as one of rescission, but, whether regarded as a plea of rescission or of recoupment, it is manifestly defective; but no objection was made to it by demurrer, and if defendants could reasonably satisfy the jury of the truth of its averments they were entitled to a verdict.
These apples having been sold by description, and the buyers having had no opportunity to inspect them, there was an implied warranty that they were merchantable. Gachet v. Warren, 72 Ala. 288; Troy Grocery Co. v. Potter, 139 Ala. 359, 36 So. 12. So it is a clear implication from the correspondence between the parties that the apples, being for resale in the usual way, should be in a condition that would keep them sound and salable for a reasonable time for that purpose.
We think that, upon the whole evidence, it was for the jury to determine whether the condition and quality of the apples at the time of their appropriation to defendants' order amounted to a breach of the implied warranty relied on. On this issue, as made by the plea, it was immaterial whether the title to the apples had passed by appropriation, or by delivery to defendants, or not. Magee v. Billingsley, 3 Ala. 679.
We think, therefore, that the trial judge erred in instructing the jury, at the instance of plaintiff, that, if they believed from the evidence "that title to the apples passed to defendants, they shall find for the plaintiff." For this error the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.