(100 So.) 7. Trial228(3) -Instruction properly re- | plaintiffs had a right to use up the corn and fused as containing ellipsis. Instruction stating "in the event the jury find the evidence" held properly refused because of omission of "from." 8. Trial 260 (1) Requested Instruction substantially covered properly refused. Requested instruction substantially and fairly covered by general charge, was properly refused, in view of Code 1907, § 5364, as amended Acts 1915, p. 815. 9. Trial 240 248, 253(6)-Requested instruction held properly refused as argumentative, abstract, and as omitting consideration of evidence. Requested instruction that in absence of warranty, plaintiffs were liable for goods delivered when payment was made, was properly refused as being argumentative, abstract and leaving out "if the jury believe from the evidence" or "find from the evidence." sue for the damages they sustained by the defendant sending inferior broom corn, the damages under the complaint to be measured by the difference in the market value of the broom corn which they should have delivered on the date of delivery and the market value of the broom corn they did deliver on the said date of delivery. "(5) If the jury believes from the evidence that defendants agreed to deliver to plaintiffs f. o. b. cars at Huntsville, Ala., a car of a 'good grade of self-working broom corn' at 18 cents per pound, and the car of broom corn delivered was not a 'good grade of self-working broom corn,' plaintiffs would be entitled to recover the difference in the market value of the broom corn that was delivered and the market value of a good grade of self-working broom corn at the time and place of delivery. "(6) If the jury believes from the evidence that the plaintiffs' contract with the defendant was for a carload of good grade self-working 10. Appeal and error 1064(1)-Trial broom corn equal to a sample defendant had previously sent to plaintiff, and the jury fur 240, 242-Instruction on burden of proof held argumentative and confused, but not preju- |ther believes from the evidence that the car dicial. Instruction, "Plaintiffs have the burden of proof to meet, but the burden is not determined by the number of witnesses swearing to a fact, but by witness or witnesses the jury becomes convinced are telling the truth," was confused and argumentative, but was not reversible er гог. of broom corn delivered was inferior to one represented by the said sample, then plaintiffs would be entitled to recover of defendants the difference in the market value of broom corn like the sample in a carload lot and the value of the broom corn actually delivered. "(7) If the broom corn which plaintiffs received was not substantially like the broom corn that defendants agreed to sell, plaintiffs Appeal from Circuit Court, Madison Coun- would be entitled to recover the difference in ty; Jas. E. Horton, Judge. Action for damages for breach of warranty by the Alabama Broom & Mattress Company against the Nashville Broom & Supply Company. Judgment for plaintiff, and defendant appeals Affirmed. See, also, 208 Ala. 222, 94 South. 83. These charges were given at plaintiff's request: "(1) In this case, if the jury believes from the evidence that the defendants breached their warranty as claimed by plaintiffs, the plaintiffs are entitled to recover the difference in the actual market value of the goods actually delivered at the time and place of delivery and the market value of what the goods should have been at the time and place of delivery. "(2) When any commodity is sold by description as shown in this case, and the description is not substantially satisfied by the commodity delivered, the purchaser is not bound to accept it. But if he does accept and use it he does not thereby waive the defect, but may nevertheless treat the defect as a breach of warranty for which he may recover appropriate damages. "(3) The plaintiffs have the burden of proof to meet, but the burden is not determined by the number of witnesses swearing to a fact, but by the witness or witnesses the jury becomes convinced are telling the truth. "(4) If defendants warranted the carload of broom corn to be equal to the sample which they had furnished plaintiffs, and the broom corn delivered was not equal to the sample, the market value of the corn received at time of delivery and the value of the broom corn plaintiffs bought (after the rise in price, if it did rise) on the date of delivery." The following requested instructions were refused to defendant: "(8) If the jury find from the evidence that there was a breach of the contract on the part of the defendants by reason of a warranty, the measure of damages would be the difference between the price paid and the value of the corn at the time of the delivery of same; if the market price had increased between the date of the sale and the date of delivery in a sum equal to or greater than the difference between the price paid and the market price, the verdict of the jury should not be for the plaintiffs. "(9) There is no implied warranty in the sale of self-working broom corn by the seller or dealer, who is not shown to have manufactured it that it was reasonably well adapted for the purpose for which it was purchased, but in a sale like that of any other merchant the seller must act in good faith and fair dealing. "(10) In the event the jury find the evidence that there was a breach of the contract by reason of a warranty, the plaintiffs must reasonably satisfy the jury as to the amount of such damages by figures upon which the jury can intelligently determine such damages. "(11) In the absence of a warranty as to the quality of the self-working broom corn the plaintiffs were liable to the defendants for the broom corn delivered when the payment was made." For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes Cooper & Cooper, of Huntsville, for appellant. David A. Grayson, of Huntsville, for appellee. MILLER, J. This is a suit by the Alabama Broom & Mattress Company against the Nashville Broom & Supply Company, a partnership, for damages for breach of a contract of warranty of a carload of "self-working broom corn," sold by the defendant to the plaintiff at 18 cents per pound, for which plaintiff paid the defendant. There are eight counts in the complaint. Some are the common counts; others are based on breach of warranty in contract of sale of a car of "self-working broom corn"; and others are based on breach of a warranty in contract of sale of a car of self-working broom corn sold to plaintiff by sample. The defendant pleaded general issue with leave to give in evidence any matter which would be an answer or in bar thereof, if the same was specially and properly pleaded. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court against the defendant this appeal is prosecuted by the defendant. This is the second appeal in this case. 208 Ala. 222, 94 South. 83. The averments of the complaint, the tendency of the evidence for plaintiff and defendant, appear in the report of the case, and they are similar in many respects on this trial, and need not be repeated in detail in this opinion. There were 79 bales of broom corn in the car. The plaintiff claimed and the evidence tended to show that plaintiff purchased a car of selfworking broom corn at 18 cents per pound, f. o. b. cars at Huntsville, Ala., from defendant by sample previously sent by defendant to plaintiff; that practically one-half of the broom corn received by plaintiff was inferior to the sample. and was worth only 8 or 10 cents per pound, and the balance was suckers and of no value; it was not self-working broom corn. The car of broom corn was purchased with the understanding that it should equal in grade the sample furnished. The value of the grade of broom corn purchased at the time of delivery was from 18 to 20 or 21 cents per pound at Huntsville, and the sample furnished was self-working broom corn. The evidence of the defendant tended to show they sold plaintiff a car of broom corn to be of "good medium grade of selfworking broom corn" at 18 cents per pound delivered at Huntsville; the corn delivered complied fully with that description; the same was not made from or according to any sample; and the value of the broom corn sold to plaintiff was 18 cents per pound at Huntsville at the time of the delivery. The evidence for plaintiff tended to show the broom corn received by him from defendant was not a "good medium grade of self-working broom R. H. Canterberry, a witness for the plaintiff testified: "The kind of corn we bought was a good grade and self-working broom corn, plenty of length, to make nice size brooms, average house brooms. The kind we got was-well, about half the car was absolutely worthless suckers." [1] The court overruled defendant's objection to the statement of the witness "that about half of the car was absolutely worthless suckers," because it was a conclusion of the witness. This was on direct examination of the witness by plaintiff. The court did not err in this ruling, as the defendants had full opportunity on cross-examination to inquire into the facts in regard to the condition of the broom corn, which they did. This witness on cross-examination stated: "That 40 bales was [were] practically selfworking broom corn, but it was not self-work *** ing. I did not use the balance of the seventy-nine bales. It was short, trashy stuff we couldn't work, and just threw it away." [2] Thomas G. Hill, witness for the defendants, testified: "Mr. Furstenberg and myself selected each bale which was removed by the truckman." The plaintiff moved to exclude the state ment about Mr. Furstenberg; the court granted the motion, and the defendants duly excepted. This error, if any, was fully cured by other testimony of this witness, and. testimony of Mr. Furstenberg. This witness testified: "I selected the broom corn shipped so that it would be a car of self-working broom corn. I loaded 79 bales in the car, and selected them from a round lot of 400 bales that I had stored in this warehouse." And Mr. Furstenberg testified for defendants that * * * * * * "We loaded the car at our warehouse in the city of St. Louis, Mr. Thomas G. Hill personally selected the broom corn with which we loaded the car. Mr. Hill personally came here and I went up in our warehouse with him and was with him while he selected the carload of corn." In Penn & Montgomery v. Smith, 98 Ala. 564, 12 South. 818, this court wrote: "It is a familiar principle that when goods are sold by sample there is an implied warranty by the seller that the bulk of the commodity is equal in quality to the sample exhibited to the buyer; and if they do not correspond the purchaser may refuse to receive it." [3] The purchaser may retain the goods and sue for the damage suffered by breach of the warranty. Brown v. Freeman, 79 Ala. 406; Alabama Broom, etc., Co. v. Nashville Broom, etc., Co.. 208 Ala. 222, 94 South. 83, and authorities there cited. See, also, Starr Jobbing House v. May Hosiery Mills, 207 (100 So.) fully discussed and the rule declared in Ma-, ten charge No. 11, requested by the defend gee v Billingsley, 3 Ala. 679, headnote 4. This court on the former appeal of this cause stated the rule as to the measure of damages. It was as follows: "The buyer is entitled to recover the difference between the actual value of the goods and what the value would have been if the goods had been as warranted.' 35 Сус. р. 468 (III)." 1 [4] The plaintiff is entitled to recover the difference between the actual market value of the broom corn delivered. at the time and place of delivery, and what the actual market value of the broom corn would have been, at the time and place of delivery, if it had been as warranted. Zimmern v. Southern Ry. Co., 207 Ala. 169 (headnote 2) 92 South. 437; Southern Ry. Co. v. N. W. Fruit Exch., 210 Ala. 519, 98 South. 382 (headnotes 14, 15). Written charges numbered 1, 2, 4, 5, 6, and 7, separately requested by the plaintiff and separately given by the court, are each in harmony with these principles, and they were properly given by the court. Written charges 8 and 9, separately requested by the defendant, and separately refused by the court, are not in accord with these principles, and the court properly refused them. [5] The appellant insists charge 2 should have been refused because it states and assumes the broom corn was sold by description. It states, "when any commodity is sold by description as shown in this case." This did not render the charge erroneous because the undisputed evidence shows it was sold by "description." The charge follows the very language of the opinion in this case on former appeal. The plaintiff's evidence tended to show it was sold by description in the form and shape of a sample, and the goods delivered did not measure up substantially to the sample, while the evidence for the defendant tended to show it was sold by "description," and the description was that it was to be a "good medium grade of self-working broom corn" or a "good grade of self-working broom corn," and the broom corn delivered measured up substantially to this description, and the evidence of the plaintiff tended to show the broom corn delivered did not measure up substantially to that description. [6-8] Written charge 10, requested by defendants, was properly refused by the court because it was calculated to mislead the jury by requiring plaintiff to make proof of "the amount of such damages by figures, and it contains an ellipsis. It states, "In the event the jury find the evidence" It leaves out the word "from" after the word "find." The same rule of law attempted to be set out in this charge was substantially and fairly given to the jury in the court's general charge. Section 5364, as amended, Acts 1915, p. 815. [9] The court did not err in refusing writ ants. It is argumentative, abstract, and leaves out, "if the jury believe from the evidence," or "find from the evidence." 12 Michie, Dig. p. 481, § 199. [10] Written charge No. 3, given by the court at the request of plaintiff, is confused and argumentative, and could have been refused, but the giving of it was not reversible error. The record is free from reversible error, and the judgment is affirmed. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. TENNESSEE COAL, IRON & R. CO. v. (Supreme Court of Alabama. April 24, 1924.) A complaint for pollution of stream alleging same was done "in the year 1919 and continuously since said time" held, under Code 1907, § 5321, to sufficiently allege time of injury, and not to be otherwise demurrable. (Per Miller, J., and Anderson, C. J.) 2. Damages 14-Matters of special damages must be specifically pleaded. Matters of special damages to be recoverable must be specifically pleaded. (Per Miller, J., and Anderson, C. J.) 77-Testimony 3. Waters and water courses In action for pollution of stream, where complaint contained no averment of flooding of plaintiff's land or deposits of sediment thereon, it was error to permit plaintiff to testify as to overflow and resulting deposits of noxious matter, and to instruct that plaintiff was entitled to recover for such deposits if made. (Per Miller, J., and Anderson, C. J.) 4. Damages 163(4)-Claimant must show injury and its extent in money. The burden is upon one claiming damages to his land to show injury and make some proof from which the jury could measure damages in money. (Per Miller, J., and Anderson, C. J.) 5. Nuisance50(2)-Damages to realty from noxious odors difference in value. The measure of damages for noxious and disagreeable odors disturbing the use of one's home is the difference in value of the property with and without such odors. (Per Miller, J., and Anderson, C. J.) 6. Evidence121(11)-Evidence, of certain matters, in action for pollution of stream held admissible as part of res gestæ. In action for pollution of stream by coal company, evidence that same was covered with chemicals and oil so thickly that it could be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes set fire to, held part of res gestæ and admis-, polluted, and which has made it wholly unfit sible. (Per Miller, J., and Anderson, C. J.) for domestic use of any kind, and plaintiff's well poisoned, his well ruined, and large deposits of ashes, débris, and poisonous substances and offensive matters, has been left deposited along the banks of the said creek near his well and dwelling, and the plaintiff says that in consequence of the wrongful and unlawful use of the said waters by the defendant unwholesome and noxious vapors and odors such as to render the dwelling unfit for occupancy, and so unhealthy as to destroy the comfortable use to the plaintiff, and the plain 8. Trial 210(2)-Instruction as to effect of tiff says and avers that the said creek has been false testimony held improperly denied. In action for pollution of stream, instruction that, if jury were satisfied plaintiff had willfully sworn falsely as to material fact, it might in its discretion discard his testimony, held improperly denied. 9. Trial 120(2)-Argument of counsel held Improper as not supported by evidence. In action for pollution of stream by coal company, argument of plaintiff's counsel, "Holbrook [one of the jurors], if you put one gallon of poison in that stream they will fix your clock, but this corporation does, it continuously," unsupported by the evidence, held improperly permitted by the court. (Per Miller, J., and Anderson, C. J.) Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge. Action for damages by A. Wilhite against the Tennessee Coal, Iron & Railroad Company, for pollution of a running stream. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded. The complaint as originally filed is as fol lows: "The plaintiff claims of the defendant the sum of $1,000 damages; avers that the plaintiff has for many years next preceding this suit, to wit, six years, owned an interest in and occupied lots 25 and 26 in block No. 2, South Corey, Rutledge Springs, situated in Jefferson county, Ala., on which he has his dwelling and lived and now lives with his family; said dwelling and lands aforesaid are situated on the banks of 'Possum creek, a body of clear creek water, suitable for domestic uses; plaintiff avers to wit, in the year 1919, and continuously since said time, defendant had in operation its plant, from which plant defendant by ditch or drainage emptying into said 'Possum creek above the plaintiff's said aforesaid land and dwelling dumped human excrement, coal washing, coal ashes, cinders, and poisoned foul converted into a nuisance, making his dwelling unfit for occupancy of any kind with comfort, having thereby diminished said property in value, plaintiff and his family made sick, tortured, and tormented, and the plaintiff avers that prior to the wrong and unlawful use of the said creek aforesaid by the defendant said dwelling was valuable in rents and comfortable for occupancy, said creek was clear and good for domestic use, all to his great damage in the sum aforesaid." It was thereafter amended thus: "Comes the plaintiff and amends his complaint by inserting the word 'one-half undivided' immediately before the word 'interest' where the same appears in the complaint." Percy, Benners & Burr, of Birmingham, and Goodwyn & Ross, of Bessemer, for appellant. Pinkney Scott, of Bessemer, for appellee. MILLER, J. This is a suit by A. Wilhite against the Tennessee Coal, Iron & Railroad Company, a corporation, to recover damages suffered by him as owner of a half interest in two lots used and occupied by him and his family as a residence, situated on the bank of 'Possum creek, by reason of pollution of this stream of water by defendant, causing human excrement, coal washing, coal ashes, cinders, and poisoned, foul matters to be dumped therein, which poisoned, corrupted, and polluted the water of the stream, made it send forth offensive and unhealthy odors into his home, and destroyed the comfortable use of it, made plaintiff and his family sick, and his well water was thereby ruined and poisoned. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon in favor of the plaintiff by the court this appeal is prosecuted by the defendant. [1] There is only one count in the complaint which was amended. Demurrers of matters which is dumped into and is washed defendant to it as amended were overruled down to said creek to plaintiff's premises, which makes and creates noxious smells and foul vapors, and the plaintiff avers that defendant has had said plant in constant operation constantly occupied for and during said time; in consequence of the aforesaid unreasonable and unlawful use of the said creek by the defend ant, the water flowing in the said creek has been constantly poisoned, corrupted, and by the court. The defendant insists the count is not sufficiently intelligible in the statement of the facts for the defendant to join issue thereon. The facts therein could be more clearly and precisely alleged, but they are so presented that a material issue in law or fact can be taken thereon by the defendant. Section 5321, Code 1907. The (100 So.) defendant claims it does not aver with any degree of certainty when the alleged wrong complained of occurred. It avers it was done "in year 1919, and continuously since said time." This would mean from "in the year 1919 and continuously since said time" up to the filing of this suit, October 14, 1922. This sufficiently averred when the wrong occurred that it was continuous from in 1919 to the filing of the suit. The facts alleged in the count as amended are sufficient to constitute a cause of action; and we find no error in the ruling of the court on the demurrers of the defendant thereto. T. C. I. & R. R. Co. v. Hamilton, 100 Ala, 252, 14 South. 167, 46 Am. St. Rep. 48; Mayor and Alderman of Birmingham v. Land, 137 Ala. 545, 34 South. 613; T. C. I. & R. R. Co. v. Bunn, 202 Ala. 22, 79 South. 360; City of In City of Montgomery v. Hughes, 65 Ala. 203, this court wrote: "It is an established rule, that all pleadings must be construed most strongly against the pleader, who is presumed most favorably for himself to state the cause of complaint, or matter of defense; and, as a consequence, when the pleading admits fairly of two constructions, the one least beneficial to him will be adopted." See, also, Lovell v. De Bardelaben C. & I. Co., 90 Ala. 13, 7 South. 756; Brown v. Com. F. Ins. Co., 86 Ala. 189, headnote 5, 5 South. 500. [2, 3] The complaint avers plaintiff owned one-half interest in two lots, 25 and 26 in block 2 in South Corey. It appears from the averments of the complaint that no damages are claimed for deposits on the land of Birmingham v. Prickett, 207 Ala. 79, head- plaintiff. There is no allegation and no claim note 4, 92 South. 7. The defendant pleaded general issue, with leave to give in evidence any matter which would be competent as a defense with like leave to plaintiff in replication thereto. The court permitted plaintiff to testify, over objection of defendant, that in high water times this creek "comes out on the lower end of my lots," the water "extends out 22 feet up on my ground," and after an overflow there is left black creosoting sediment from a shoe sole to a shoe mouth deep thereon. The court charged the jury orally as follows, to which defendant reserved an exception: "Even if he wasn't a riparian owner, however, if any deposits were made on his land by this defendant that were deleterious and detrimental to him in a material way, and he suffered material damages as the result thereof, he would be entitled, as the proximate result thereof, he would be entitled to recover therefor." The defendant requested the court to give this written charge to the jury, which the court refused: (50) "If you believe the evidence in this case you cannot award the plaintiff any damages on account of any flooding of the plaintiff's property, if the same was flooded." The averments of the complaint bearing on this subject, appear in two places, as follows: "Defendant by ditch or drainage emptying into said 'Possum creek above the plaintiff's said aforesaid land and dwelling dumped human excrement, coal washing, coal ashes, cinders, and poisoned foul matters which is dumped into, and is washed down to said creek to plaintiff's premises which makes and creates noxious smells and foul vapors." And the other averment is as follows: "And large deposits of ashes, débris, and poisonous substances and offensive matters have been left deposited along the banks of the said creek near his well and dwelling." in the complaint for flooding or overflowing land of plaintiff. There is no direct averment in the complaint that deposits or sediment were made by defendant on this land of plaintiff and claim of damages therefor. These are special damages; they must be particularly specified in the complaint before evidence thereof will be permitted and before recovery therefor will be allowed. The court erred in permitting proof thereof; the court erred in its oral charge permitting recovery for deposits on the land, and after this evidence was admitted the court should have given charge 50 requested by the defendant. Hanchey v. Brunson, 175 Ala. 243, 56 South. 971, Ann. Cas. 1914C, 804; T. C. I. & R. R. Co. v. Hamilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48.. Many errors are assigned on objections to questions because they call for conclusion or opinion of the witness, and many errors are assigned on charges given and refused be cause there was no proof of the value of the injury to the property of plaintiff from which the jury would be authorized to ascertain the amount of the damages in money. As this cause must be reversed, we will not refer specially to each of these alleged errors, but will refer to the rules for guidance of the court and parties on another trial. [4] When property is injured by another and damages are claimed therefor, the burden rests on plaintiff as a condition to recovery of damages to show the injury to the property and to make some proof from which the jury could measure and decide the damages done in money. B'ham R., L. & P. Co. v. Camp, 161 Ala. 456, headnote 1, 49 South. 8463; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 South. 733; B. R., L. & P. Co. v. Harden, 156 Ala. 244, headnote 7, 47 South. 327. [5] In M. & O. R. R. Co. v. Turner, 209 Ala. 667, 96 South. 707, this court said: "The measure of damages for a nuisance by which the plaintiff's home has been subjected to noxious and disagreeable odors is the differ |