
    8447.
    Stewart & Griffin v. Blalock.
    Decided July 5, 1917.
    Complaint; from city court of Quitman—Judge Long. January 20, 1917.
    
      Bennet & Harrell, for plaintiffs in error.
    
      Branch & Snow, contra.
   Broyles, P. J.

1. As the motion for a new trial of the ease embraced the ground that the verdict was contrary to the evidence and without evidence to support it, under repeated rulings of this court the assignment of error based upon the refusal of the court to award a non-suit will not be considered.

2. It being stated in the written contract of sale, which was put in evidence, that the property sold thereunder “is sold without any guarantee as to its kind or quality, and is purchased by the maker of this obligation with the understanding that no warranty shall be implied as against the seller,” the court erred in overruling the timely motion of the defendant to rule out the plaintiff’s testimony, “I said you guaranteed this mare to me, and I expect you to take care of it;” the grounds of objection to this testimony being that the contract evidencing the trade between the plaintiff and the defendant was in writing, and that this writing was the highest and best evidence, and that it expressly waived any implied or express warranties on the part of the sellers. This error, however, was harmless, and does not require a new trial of the case, as the original contract, evidenced by this writing had by consent been rescinded, and the contents of the writing were immaterial. This suit ipas not based upon the original contract, but was an action of complaint.

3. Under the evidence, the excerpt from the charge of the court, as complained of in the special grounds of the motion for a new trial, was authorized, and was not erroneous for any other reason assigned.

4. Under all the facts of the case, the failure of the court to charge (without request) certain principles of law, as complained of in the motion for a new trial, was not erroneous.

5. The evidence authorized the verdict.

Judgment affirmed.

Jenkvns and Bloodworth, JJ., concur.  