(concurring).
I concur in the result reached by the two Circuit Court Judges with whom I have the honor to sit in this case, but I can not concur in all that is said in the opinion.
Simply stated, and omitting all mat- ■ ters which in my opinion are not necessary to a decision in this case, I base my concurrence on the following:
FWD Corporation, a manufacturer, made and sold the vehicle in question through a distributor to Altec, Inc., the plaintiff in the instant case. At the time of this sale, as found by the District Judge, there was a defect in the vehicle concerning its steering. Although *864sold by Altec to the City of Gainesville, Florida, f. o. b. Gainesville, Altec delivered it to employees of the City of Gainesville and they, while en route to that city, suffered an accident due to the defective steering. Altec, no doubt realizing its liability to the City of Gaines-ville to deliver to it a vehicle reasonably fit for its intended use (pursuant to Title 57 Alabama Code, § 21) then took back the damaged vehicle and repaired it at an expense of $7,046.88, as found by the District Judge. Altec then again delivered the vehicle to the City of Gaines-ville and received payment pursuant to its preexisting contract of sale.
The case was tried in the District Court upon different contentions than those relied upon after findings of fact, conclusions of law and final judgment were entered by the trial judge. The eomplaint does not make it clear whether plaintiff is relying upon the theory of implied warranty, or negligence, as both are incorporated. Negligence, however, was definitely charged against FWD, the manufacturer, and was found to exist by the trial judge. The trial judge decided the ease as being an action under an implied warranty, and in doing so apparently was taking the stronger of two theories at which plaintiff had hinted. He found against plaintiff on that theory, however, because he found that Altec, the party suing for damages, was not the owner of the vehicle when the damages occurred. Appellant in its brief now virtually concedes that the judge was correct in that finding, or at least is willing to abandon any contention that title was in Altec at the time of the accident.1 Altec asserted in its brief that it had sufficient right to recover for its loss under conventional concepts of indemnity or subrogation. That contention, however, was not made before the trial court until after judgment rendered. The trial judge after allowing certain amendments to meet the evidence in the case, refused to change his judgment or to grant a new trial. While there is a serious question in my mind as to whether there was any duty on the trial judge, after rendering judgment, to reopen the case and decide it on a different theory, in the interest of justice I am going along with my distinguished brethren, as the District Judge did see fit to allow some amendments to the pleadings. I feel fairly confident, however, that had the case been originally tried in the District Court on the contentions now belatedly offered to this Court, there would have been different findings of fact and different conclusions of law made by the trial court.
Because of the fact that Altec was under the law bound to deliver to the City of Gainesville a vehicle that was merchantable, and because it was unable to do so because of defects attributable to FWD, the damages suffered by Altec under the theory of subrogation would be the same whether the accident occurred before delivery, or after delivery, of the vehicle to the City of Gainesville. In either event FWD had breached its implied warranty, resulting in the amount of damages found by the trial judge, and the only question left open is whether or not under Alabama law Altec had the right to suffer the expenses to comply with its contract with the City of Gainesville, then sue FWD on its breach of warranty “without suit or prior adjudication of such warranty liability.”
. Brief of appellant after reciting that the trial “was fought on two fronts”, first, whether the f. o. b. Gainesville provision in the contract retained title in Altec until delivery, and secondly, if title had passed, did Altec have the right to recover from FWD, stated the following: “Mindful of that authority that holds passage of title to be a mixed question of law and fact, and considering it unnecessary and unwise to meet the trial judge headon about a finding of fact, Altec does not raise the f. o. b. or title question on this appeal.”