HARALSON, J.
The rule generally is, that a ruling sustaining or overruling a demurrer will‘not on error be revised, unless the demurrer appear of record. — 3 Brick. Dig. 405, § 13. The judgment entry in this case shows, that a demurrer interposed by the plaintiff to the defendants’ 7th plea, which demurrer was not set out in the record, was sustained. In this state of the case, we must presume, if necessary, that some grounds of demurrer were specifically assigned, in order to sustain the rulings of the court below.—Newsom v. Huey, 36 Ala. 562 ; Merritt v. Flemming, 42 Ala. 234.
The appellants, defendants below, complain here of the action of the lower court in sustaining a demurrer to said 7th plea. The requirement is, that when the record shows a demurrer was sustained to a plea, and the grounds of demurrer are not shown, the defendant on appeal, complaining of the ruling of the lower court in sustaining such 'a demurrer, must affirmatively show error. Where a demurrer is sustained to a plea, and the pleading is perfect, then of course error is apparent; but, if the plea was bad, and we presume, as we must, in order to sustain the ruling, that the grounds of demurrer- showing its vices were specifically assigned, the [375]*375ruling sustaining the demurrer will be approved.—Whitten v. Graves, 40 Ala. 582. The 7th plea was bad, and, therefore, we presume a proper demurrer to show this was interposed. The case was tried upon pleas numbered 8, 9, 10 and 11, which will be set out in the report of the case.
The bill of exceptions does not set out all the evidence. That fact is so stated in the bill. Charges were given for plaintiff, to which exceptions were reserved. Appellant contends that some of these charges were incorrect under any conceivable state of proper proof.
We have examined the charges requested and given for the plaintiff. They may be classified for the purpose of their easier disposition. The 1st, 6th, 7th, 8th and 9th, relate to a waiver of defects alleged to have existed in the machinery at the time it was sold to defendants, which were unknown at the time of the delivery of the property, and afterwards discovered. It is unquestionably true, that if the seller of personal property delivers to the purchaser an article that does not come up to warranty, express or implied, the latter may rescind by an offer to return the article in a reasonable time after discovery of the defects ; but in such case, the rule is, that the vendee must act with promptness, and discovering that the property was not such as was contemplated, he must offer to return it. If he neglects to do so immediately upon discovering a breach of warranty, or fraud, but keeps it and treats it as his own, as by offering to sell it or by renting it out, he cannot afterwards reject the contract.—Barrett v. Stanton, 2 Ala. 181. “If after discovering the untruth of the representations, he conducts himself with reference to the transaction, as though it was still subsisting and binding, he thereby waives all benefit and relief from the misrepresentations.” — 2 Pom. Eq. Jur., § 897; Lockwood v. Fitts, 90 Ala. 150. As was said in Eagan Co. v. Johnson, 82 Ala. 237. “When in making an executory contract of sale of personal property, fraud is perpetrated to the injury of the purchaser ; or when there is a warranty, express or implied, that has been broken ; or when the article tendered in performance of such executory agreement does not conform to the stipulation, — either of these furnishes ground of defense to any suit by the seller, brought for the enforcement of such contract. This defense, [376]*376however, the purchaser may waive, and does waive, if, after learning the facts, he executes the contract on his part, or does any other act- inconsistent with his right to make the defense.”
And again, as was said in Dill v. Camp, 22 Ala. 259, “A party can not in a court of law rescind a contract and yet retain the possession and .use of the subject matter of it, as if it were still his. In cases where the parties reside at a distance, after the rescission has been effected by an offer merely to return the property, the vendee, if he retains the possession, can only do so as the bailee of the vendor, until he can receive the orders of the latter as to what disposition to make of it..- But he can exercise no control or dominion over the property himself, as being the rightful owner.”
“Unless there was a rescission of the sale, or unless the article purchased was valueless, the purchaser could not resist the payment of the entire purchase money of the defective article. His defense, while he retains, the article purchased, extends only to an abatement of the price agreed to be paid.”—Eagan Co. v. Johnson, 82 Ala. 238, supra ; Jemison v. Woodruff, 34 Ala. 143.
In this case the contract for the soda fountain was signed by defendants on the 7th of October, 1887. On the 28th January, 1888, the plaintiff, in Boston, Mass., as the evidence tends to show, shipped to the defendants in Opelika, Ala., the property purchased, together with an invoice of the goods in detail, showing the prices of each separate part, aggregating $1,300, the contract price for the whole, together with monthly notes for the same to be signed by defendants and returned, according to contract. On the receipt of the goods in Opelika, the defendants .signed and returned the notes to plaintiff. Williams, one of the defendants, testified, that the notes were signed after the machine was opened, and Hodge, the other defendant, that they were signed before it was opened.
The fountain was put up in March, 1888. After-wards, on the 19th of that month, defendants’ wrote, that they were disappointed in the apparatus ; .that the salesman had guaranteed that it “was all O. K., no breaks or any defects whatever that defendants found cracks that had been glued and bradded, and that they had been mistreated, and closed by saying, “When your [377]*377salesman comes around again, we intend to have a settlement. Send us by mail one name for syrup — there was one lost off or not put in when shipped. We think it was strawberry." There was evidence tending to show that the cracks complained of, except one, were natural seams in the marble, filled with cement to represent the same color as the marble, and as to the other, that the marble had been cracked and cemented. To this letter the plaintiff replied, protesting that the apparatus was all right, and in substance, that the cracks or seams were natural, such as existed in all fancy marbles of the kind; that in the cementing, neither the beauty nor utility of the marble was interfered with; that they had selected the best machine, and it was a good one, adding in conclusion, that if he had not succeeded in convincing them upon the points specified, he had at least shown them that they were not overreached or defrauded. After the defendants received this letter, they continued to use the machine through the summer, and paid their notes regularly till December, 1888. In the summer of that year, one of the defendants testified that he wrote two letters to plaintiff, stating that one of the ice chambers leaked, and the cracks in the marble were such that they could not use the apparatus to advantage, and further that it had not come up to representations, and unless they made some satisfactory adjustment, they would pay no further, and requesting that Mr. Lee, the agent, be sent out to make some arrangement with them concerning it. These letters plaintiff testified he never received.
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HARALSON, J.
The rule generally is, that a ruling sustaining or overruling a demurrer will‘not on error be revised, unless the demurrer appear of record. — 3 Brick. Dig. 405, § 13. The judgment entry in this case shows, that a demurrer interposed by the plaintiff to the defendants’ 7th plea, which demurrer was not set out in the record, was sustained. In this state of the case, we must presume, if necessary, that some grounds of demurrer were specifically assigned, in order to sustain the rulings of the court below.—Newsom v. Huey, 36 Ala. 562 ; Merritt v. Flemming, 42 Ala. 234.
The appellants, defendants below, complain here of the action of the lower court in sustaining a demurrer to said 7th plea. The requirement is, that when the record shows a demurrer was sustained to a plea, and the grounds of demurrer are not shown, the defendant on appeal, complaining of the ruling of the lower court in sustaining such 'a demurrer, must affirmatively show error. Where a demurrer is sustained to a plea, and the pleading is perfect, then of course error is apparent; but, if the plea was bad, and we presume, as we must, in order to sustain the ruling, that the grounds of demurrer- showing its vices were specifically assigned, the [375]*375ruling sustaining the demurrer will be approved.—Whitten v. Graves, 40 Ala. 582. The 7th plea was bad, and, therefore, we presume a proper demurrer to show this was interposed. The case was tried upon pleas numbered 8, 9, 10 and 11, which will be set out in the report of the case.
The bill of exceptions does not set out all the evidence. That fact is so stated in the bill. Charges were given for plaintiff, to which exceptions were reserved. Appellant contends that some of these charges were incorrect under any conceivable state of proper proof.
We have examined the charges requested and given for the plaintiff. They may be classified for the purpose of their easier disposition. The 1st, 6th, 7th, 8th and 9th, relate to a waiver of defects alleged to have existed in the machinery at the time it was sold to defendants, which were unknown at the time of the delivery of the property, and afterwards discovered. It is unquestionably true, that if the seller of personal property delivers to the purchaser an article that does not come up to warranty, express or implied, the latter may rescind by an offer to return the article in a reasonable time after discovery of the defects ; but in such case, the rule is, that the vendee must act with promptness, and discovering that the property was not such as was contemplated, he must offer to return it. If he neglects to do so immediately upon discovering a breach of warranty, or fraud, but keeps it and treats it as his own, as by offering to sell it or by renting it out, he cannot afterwards reject the contract.—Barrett v. Stanton, 2 Ala. 181. “If after discovering the untruth of the representations, he conducts himself with reference to the transaction, as though it was still subsisting and binding, he thereby waives all benefit and relief from the misrepresentations.” — 2 Pom. Eq. Jur., § 897; Lockwood v. Fitts, 90 Ala. 150. As was said in Eagan Co. v. Johnson, 82 Ala. 237. “When in making an executory contract of sale of personal property, fraud is perpetrated to the injury of the purchaser ; or when there is a warranty, express or implied, that has been broken ; or when the article tendered in performance of such executory agreement does not conform to the stipulation, — either of these furnishes ground of defense to any suit by the seller, brought for the enforcement of such contract. This defense, [376]*376however, the purchaser may waive, and does waive, if, after learning the facts, he executes the contract on his part, or does any other act- inconsistent with his right to make the defense.”
And again, as was said in Dill v. Camp, 22 Ala. 259, “A party can not in a court of law rescind a contract and yet retain the possession and .use of the subject matter of it, as if it were still his. In cases where the parties reside at a distance, after the rescission has been effected by an offer merely to return the property, the vendee, if he retains the possession, can only do so as the bailee of the vendor, until he can receive the orders of the latter as to what disposition to make of it..- But he can exercise no control or dominion over the property himself, as being the rightful owner.”
“Unless there was a rescission of the sale, or unless the article purchased was valueless, the purchaser could not resist the payment of the entire purchase money of the defective article. His defense, while he retains, the article purchased, extends only to an abatement of the price agreed to be paid.”—Eagan Co. v. Johnson, 82 Ala. 238, supra ; Jemison v. Woodruff, 34 Ala. 143.
In this case the contract for the soda fountain was signed by defendants on the 7th of October, 1887. On the 28th January, 1888, the plaintiff, in Boston, Mass., as the evidence tends to show, shipped to the defendants in Opelika, Ala., the property purchased, together with an invoice of the goods in detail, showing the prices of each separate part, aggregating $1,300, the contract price for the whole, together with monthly notes for the same to be signed by defendants and returned, according to contract. On the receipt of the goods in Opelika, the defendants .signed and returned the notes to plaintiff. Williams, one of the defendants, testified, that the notes were signed after the machine was opened, and Hodge, the other defendant, that they were signed before it was opened.
The fountain was put up in March, 1888. After-wards, on the 19th of that month, defendants’ wrote, that they were disappointed in the apparatus ; .that the salesman had guaranteed that it “was all O. K., no breaks or any defects whatever that defendants found cracks that had been glued and bradded, and that they had been mistreated, and closed by saying, “When your [377]*377salesman comes around again, we intend to have a settlement. Send us by mail one name for syrup — there was one lost off or not put in when shipped. We think it was strawberry." There was evidence tending to show that the cracks complained of, except one, were natural seams in the marble, filled with cement to represent the same color as the marble, and as to the other, that the marble had been cracked and cemented. To this letter the plaintiff replied, protesting that the apparatus was all right, and in substance, that the cracks or seams were natural, such as existed in all fancy marbles of the kind; that in the cementing, neither the beauty nor utility of the marble was interfered with; that they had selected the best machine, and it was a good one, adding in conclusion, that if he had not succeeded in convincing them upon the points specified, he had at least shown them that they were not overreached or defrauded. After the defendants received this letter, they continued to use the machine through the summer, and paid their notes regularly till December, 1888. In the summer of that year, one of the defendants testified that he wrote two letters to plaintiff, stating that one of the ice chambers leaked, and the cracks in the marble were such that they could not use the apparatus to advantage, and further that it had not come up to representations, and unless they made some satisfactory adjustment, they would pay no further, and requesting that Mr. Lee, the agent, be sent out to make some arrangement with them concerning it. These letters plaintiff testified he never received.
More than twelve months, then, after the purchase of the fountain, and after the plaintiff had used it for a season; now and then from the first complaining that there were defects in it; with a positive denial by' plaintiff from the beginning, that these complaints had any foundation in fact, and with not a w'ord from him, so far as appears, to mislead defendants or induce them to a further trial before offering to rescind, and having paid the monthly notes, meantime, to December 1, 1888, the defendants, on the 15th November, 1888, wrote to plaintiff, stating that ‘ ‘The soda apparatus and generator we agreed to purchase from you, and for which you have our notes, is here subject to your order. You agreed to give us apparatus in perfect order. It has [378]*378leaked from the time we first began, using it, making it impossible to pack ice in the fountain. We have worried through the season, lost money but paid payments promptly — notwithstanding you have failed to comply with your part of contract, ” &c. Other letters passed between the parties, on the part of defendants complaining of leaks in the machine, and on the part of plaintiff refusing to concede that any of the complaints were well founded. In March, 1889, the defendants again wrote proposing an exchange of the fountain for another at a fair price, and asking plaintiff to send his agent out to represent him in the matter. The plaintiff replied that he would do so at once, and the evidence shows, that the agent came to Opelika in October, 1889, and examined'the apparatus and left without making any proposition for an exchange. It is further shown, that in 1889, due of the defendants proposed to sell the apparatus to another party, and in 1891, after this suit was instituted, they permitted one Moore to use temporarily two of the copper receptacles of the fountain for soda, for which Moore, agreed to pay them. We are unable to conclude that either of these charges were incorrect as applicable to the evidence in the cause. If the facts hypothesized in them were true, the • defendants waived the defense of a rescission such as they claim. They are entirely inconsistent with the plea of rescission on account of the alleged defects.
There was no error in giving charges 4, 10, 11, 12 and 15. It is an uncontroverted fact, that on March 26th, 1888, the plaintiff wrote to defendants in which he made known to them, that the fountain sent to them was a second hand machine. In it he stated distinctly, that a firm had used, this apparatus before it was sent ■to defendants, and had it with the same seams and cementing, and had exchanged it with plaintiff for a large one. If the facts hypothesized in these charges were true, the defendants could not set up as a defense that the apparatus was second hand.
There was no'error in giving charge 13. There is an entire absence of any evidence- showing an express warranty of the quality of the machine when sold by plaintiff.
The second charge is a correct statement of the rule as [379]*379to the effect of an implied warranty in the sale of an article of personal property.
The 16th and 17th charges were, under the evidence, proper instructions. Under the uncontroverted facts, there was no rescission of the contract, and nothing remained to be considered but the fraud and breach of warranty set up in defendants’ pleas.
Charge 18, as applicable to the facts of this case, correctly states the rule as to the measure of damages in case of a breach of warranty. The actual proximate injury sustained from the breach is the general rule of damages. This would include such expense as was reasonably necessary to rep air the articles sold, or put them in the condition they would have been in, if there had been no defects.—Snow v. Schomacker Man. Co., 69 Ala. 119. Charges 3, 5 and 14, for the same reasons, were free from error.
Affirmed.