The public policy of the state has been given expression by statutes-in the requirement of official bonds of public officials who hold office under the Constitution (as secre- In Tallassee Oil & Fertilizer Co. v. Hollotary of state [Code § 575; Gen. Acts 1915, p. way, 200 Ala. 492, 76 South. 434, L. R. A. 115]; state auditor [Code, § 597]; state treas- 1918A, 280, it was held that the ginning of urer [Code, §§ 616, 617]; Attorney General cotton for the public was the subject of a [Code, § 634]), by the provision for payment proper exercise of governmental regulation; of the premiums on official bonds (Gen. Acts that such a "ginnery," when dedicated to the 1923, pp. 752, 755), by the requirement of public use, became clothed with a public inbonds of other department officials and em-terest, as affecting the community at large,

(100 So.)

and as such was subject to reasonable governmental regulation. See, also, Ex parte Baldwin County Producers' Corporation, 203 Ala. 345, 83 South. 69; State v. Goldstein, 207 Ala. 569, 578, 93 South. 308; Stewart v. Capital Fertilizer Co., 207 Ala. 596, 93 South. 641; L. R. A. 1918A, 285, 286; 23 A. L. R. 1479, note.

[1] Under the authority of Tallassee Oil & Fertilizer Co. v. Holloway, supra, we are of opinion that section 6 of the act of 1923 (Gen. Acts, p. 492) was a valid exercise of the police power of government; that is to say, if the enactment be not subject to other constitutional objection, that discussion will be confined to the objection presented in argument of counsel.

(Supreme Court of Alabama. June 19, 1924.) Judges 16(1)—New trial 156-Prohibi

tion10(2)-Special judge held de facto judge whose order continuing motion not void; and its determination not preventable by prohibition.

Special judge, appointed under Gen. Act 1919, p. 841, because of temporary disability of trial judge, held de facto judge, whose order continuing motion for new trial was not void, so as to authorize prohibition against subsequent determination of motion, though Const. 1901, § 160, does not authorize special judge for such reason; section 161 authorizing a special judge in case of regular judge's inability to hold regular term.

Original petition by Effie Webster for writ of prohibition to Hon. S. F. Hobbs, Judge'of the Fourth Judicial Circuit. Writ denied.

[2] The provisions in the title of said act include (among others) ample provision relating to the subject of fertilizers and fertilizer material, public gins, the storage and sale of cotton, cotton standards, and public cotton classers, and embrace the subject of It is shown by the petition that petitioner public warehouses and uniform law of ware- filed suit against Leopold Loeb in the circuit house receipts, etc. Gen. Acts 1923, p. 399 court of Jefferson county, resulting in her et seq. No question of duplicity is present- favor; that thereafter defendant presented ed. It is urged that the title as to ware- his motion for a new trial to one C. E. Wildhouses was too general. As to this objec-er, claimed to be acting as special judge of tion, the rules declared in Ballentyne V. that circuit, who indorsed thereon, "PresentWickersham, 75 Ala. 533, are:

"Under this clause of the Constitution (section 2, art. 4), the title of a bill may be very general, and need not specify every clause in the statute, it being sufficient if they are all referable and cognate to the subject expressed; and, when the subject is expressed in general terms, every thing which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it. But if clauses are contained in the act which are not so correlated to the subject expressed in the title, as to appear to follow as a natural and legitimate complement, they cannot stand."

[3] The reasonable requirements of and regulations imposed on the proper bonding of such public warehouses were all referable and cognate to the subject expressed in the title of the act of September 27, 1923, Gen. Acts, p., 399 et seq. On this ground the title and the act are in consonance with the requirements of section 45 of the Constitution. This court will never search for constitutional infirmities in statutes, but will consider only those questions raised and insisted upon. State ex rel. Brandon v. Prince, 199

Ala. 444, 74 South. 939.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

ed May 29, 1924, and continued to June 7, 1924. C. E. Wilder, Special Judge"; that the sole authority for said Wilder's claiming to act as special judge is a writing designating him to act as such in view of the inability of Roger Snyder, one of the judges (who, the petition shows, presided at the trial of the case above mentioned), temporarily to discharge the duties of his office, and signed "C. B. Smith, Presiding Judge."

It is averred that petitioner has never consented to the alleged appointment of Wilder as such special judge, had no notice that the motion for new trial would be presented to him, and did not agree to or acquiesce therein, or in the order made by him, and does not recognize his authority to act in the premises.

It is further averred that Hon. S. F.

Hobbs, judge of the Fourth judicial circuit. was sitting as judge of the Tenth judicial circuit (Jefferson county), and presiding over the division usually presided over by Hon. Roger Snyder, temporarily absent; that the motion for new trial was called for hearing by Judge Hobbs, and counsel for defendant moved for a continuance; that counsel for plaintiff appeared specially for the purpose before Judge Hobbs, and objected to the court undertaking to hear, consider, or to make any order upon said motion upon the ground, among others, that the act under which Wilder was appointed special judge is null and void; that notwithstanding petitioner's objections the Hon. S. F. Hobbs entered on said motion an order passing the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

same to a future date; that said Judge | 2. Appeal and error 384(2)—Appeal held to Hobbs will continue to sit in the place of Judge Snyder, and will, unless restrained, undertake to hear and determine said mo

Where appeal was taken by giving security for costs, under Acts 1919, p. 84, unless it appears from such security that appeal was from It is prayed that said Judge Hobbs be re-inal judgment, rulings on motion cannot be judgment on motion as distinguished from origquired to show cause why he should not be considered, and appeal must be held to be from prohibited from considering said motion, etc. original judgment. Horace C. Wilkinson, of Birmingham, for petitioner.

Ala.)

ROBINSON v. STEVERSON
(100 So.)

Action on common counts by W. C. Rob- tached marked Exhibit A, that plaintiff underinson, doing business as the Robinson Lum- took and agreed for the consideration therein ber Company, against J. M. Steverson. From expressed to fill said order, and defendant has a judgment for plaintiff for nominal dam- paid plaintiff all or a large part of the price agreed upon, and plaintiff did undertake to fill Reversed and reages, plaintiff appeals. said order by shipping, and he did ship on said order a certain amount of lumber, to wit, a manded. Certiorari denied by the Supreme Court in carload of lumber, to wit, car P. L. E. No. 6430. Ex parte Steverson, 100 South. 912.

"Defendant avers that plaintiff breached said

Rudulph & Smith, of Birmingham, for ap- agreement, in that said lumber so shipped by

SAMFORD, J. [1] The judgment was rendered on the 22d day of February, 1922, and the bill of exceptions was not presented until the 2d day of September, 1922. being more than 90 days from the rendition of the judgment, the bill of exceptions cannot be considered in connection with the McMillon v. judgment in the main trial.

plaintiff was not such as ordered by defendant, and plaintiff did not furnish such lumber as was ordered by defendant and as plaintiff agreed to furnish as aforesaid,

"As a proximate consequence of said breach, defendant lost the amount of money so paid to plaintiff, and defendant was put to great trouble, inconvenience, and expense in or about getting said lumber to its destination and in or about having same prepared for the use of which it was ordered from plaintiff, and said lumber was rejected by defendant's customer for whom defendant ordered said lumber from plaintiff, viz. Central of Georgia Railway Com-. pany, and said lumber was worthless to defendant and lost to him, and plaintiff was put to great trouble, inconvenience and expense in and about procuring the quantity, kind, and quality of lumber ordered by defendant from All to the damage of plaintiff as aforesaid. defendant in the sum of $5,000, which he offers to offset against the claim of plaintiff sued on,, and he claims judgment for the excess. "Harsh, Harsh & Harsh, Attys. for Deft."

"Exhibit A.

"Robinson Lumber Company, Calera, Ala.: "Positive shipment inside 10 days.

"1387.
"M-10-20.

"Central of Georgia Railroad.
"Birmingham, Ala.

April 17, 1920.

Skelton, 208 Ala. 693, 95 South. 148. [2] Security for costs of appeal was taken and approved July 3, 1922, in the following language: "We hereby acknowledge ourselves security for costs of appeal in the above case," etc. The citation of appeal recites: "Whereas W. C. Robinson, doing business as Robinson Lumber Company, has taken an appeal from the circuit court of the county of Jefferson in the cause of W. C. Robinson, doing business, etc., against J. M. Steverson," etc. The certificate of the clerk, after reciting a complete transcript, further certified that "plaintiff prayed for and obtained an appeal to the present term," etc. One of the modes provided for taking appeals is (Acts 1919, p. 84, § 1[b]) "by giving security for the costs of the appeal, to be approved by the clerk or register or court." It being therein provided that the giving and approval of the security shall "show" that the appeal was taken, it would appear that the security for costs must be looked to in order to determine from which judgment the appeal is taken, and, unless there appears to be an appeal from the judgment upon the motion as distinguished from the original judgment, the trial court's rulings on the motion cannot be considered by the appellate court. McMillon v. Skelton, supra. The appeal in this case must be held to be from the original judg"As I told you while in the office Friday, this ment. This leaves us only to consider the can be cut from any variety of oak, but I trust pleadings in the case as shown by the record. you will see that it is good stuff, and well manThe complaint was in seven counts, claim-ufactured, as this is for a new freight house ing on the common counts for merchandise for the C. of Ga., and they asked that we ship and money had and received and by an add- good stuff. ed count on an account stated.

[3] To these several counts, besides the general issue the defendant interposed plea 3 as follows:

"Defendant avers that heretofore, to wit, on the 17th day of April, 1920, defendant gave an order to plaintiff who was engaged in the business of cutting or manufacturing lumber, a substantial copy of which order is herete at

"Please enter the above-numbered order and ship the following material, to be sound ́and square oak, any variety, free from any unsound or loose knots, or any other defect that would impair the strength of the piece, and to be well manufactured.

"Sound and Square Oak.
38 Pcs. 10x12"-20'
4x10"-20'
6x8"-20'

40

37

46

66

"Price to be per M $50.00 f. o. b. cars mill. "You to guarantee grade and count at destination.

"I am sending you this as per phone instructions from your Mr. Calloway, at Calera, this

date.

"Please acknowledge receipt of the order on the inclosed card, stating the very earliest shipment you can make.

"Yours very truly,

J. M. Steverson."

1

[4] To this plea the plaintiff demurred, assigning many grounds of demurrer, unnecessary for us to here set out. The trial courtconsidered this plea as setting up a breach

[7, 8] The measure of damages recoverable by a buyer for breach of warranty in the sale of personal property is the difference between the agreed price of articles at the time of delivery, and their market value, if they had been as warranted. In other words, if the buyer receives the articles purchased and retains them, he must pay their reasonable market value and no more. Chapman v. Dowling, 205 Ala. 586, 88 South. 748; Attalla Oil & Fert. Co. v. Goddard, 207 Ala. 287, 92 South. 794. In his cross-action for a breach of warranty, defendant was not entitled to recover damages, for:

of warranty, and we think in this conclu- Carolina P. C. Co. v. Ala. Const. Co., 162 sion the trial court was correct. Construing Ala. 380, 50 South. 332. the plea most strongly against the pleader, there is an allegation of purchase of lumber of certain specifications, to be delivered to Central of Georgia Railway at Birmingham, a delivery of a car of lumber in attempted compliance with the terms of purchase, an assumption of control over the lumber by defendant, a preparation of the lumber by defendant for the uses for which it was ordered, and a tender by defendant to its customer of the lumber in its changed condition. Where goods are tendered by the vendor to the vendee, as being the goods purchased, and such goods do not correspond with the conditions of the contract of sale, the buyer may accept or refuse the same, but he is not permitted to do both. Stephenson v. Allison, 123 Ala. 439, 26 South. 290. If the buyer accepts the goods, and such goods fail to come up to the standard, the remedy is for a breach of warranty and not for the breach of an executory contract. Roden Gro. Co. v. Gipson, 9 Ala. App. 168, 62 South. 388; Con. Jewelry Co. v. Pugh, 168 Ala. 295, 53 South. 324, Ann. Cas. 1912A, 657. Being a plea claiming for a breach of warranty in the delivery of the lumber contracted to be sold, the defendant was entitled by proper plea to have this claim adjudicated in this suit and such amount as was found to be justly due him offset against the claims of plaintiff. Code 1907, § 5858.

"Inconvenience and expense in and about getting said lumber to its destination; having same prepared for the uses for which it was ordered; inconvenience and expense in and about procuring the quantity, kind and quality of lumber ordered."

These damages might have been recoverable in an action for the breach of an executory contract, by proper allegations and proof, but not here. Caffey v. Ala. Mac. & Supply Co. (Ala. App.) 96 South, 454. motion of plaintiff to strike from the plea the above items of damage should have been granted.

The

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

SAMFORD, J. Opinion modified to meet the views of the Supreme Court in Ex parte Steverson, 100 South. 912.

Ex parte STEVERSON. ROBINSON V. STEVERSON. (6 Div. 114.)

[5] While giving to the defendant this right, the law requires of the defendant that he state his cause of cross-action in such terms as to apprise the plaintiff of his claims, and not in general terms to state his conclusions that a breach had occurred. In alleging a breach of warranty, the substance of the warranty must be stated, and the breach according to the facts, and not the mere conclusion of the pleader. Greer v. MaloneBeall Co., 180 Ala. 602, 61 South. 285. The lumber ordered by defendant was specified and described in the exhibit to the plea, so also the plea should have specified in what. Pleading 146-Plea of set-off subject to particular the lumber failed of the specifications. Code 1907, § 5382, form 22. While our statute enlarges the subject of set-off, it does not relieve the defendant from disclosing a state of facts such as would entitle the party pleading to an action, if he were suing as plaintiff. Crawford v. Simon

ton, 7 Port. 110.

[6] Coming now to the questions raised by the motion to strike from plea 3 certain claims for damages: The proper way to reach averments in a cross-action claiming damages not recoverable in the complaint is by motion to strike, by objections to testimony, or by appropriate written charges. These may be pursued, either separately or jointly.

(Supreme Court of Alabama. May 29, 1924. Rehearing Denied June 30, 1924.)

same tests as complaint.

A plea of set-off is on same footing as original complaint, and subject to same tests as to sufficiency of its allegations.

2. Sales ~435 (4)—Plea' of set-off held defective.

In action for price of lumber, plea of set

off, which did not specify even in general terms

nature of defects attributed to lumber received, held to be defective; allegation that plaintiff did not furnish lumber ordered being insufficient.

3. Appeal and error 1042(4)—Denying motion to strike from plea not reversible error, since movant could by motion exclude evidence.

Denying motion to strike from plea of set10 Mich. Dig. p. 1042, par. 106; off certain items of damages not properly re