
    Small v. Tidwell et al.
    
    September 23, 1914.
    Action for breach of warranty. Before Judge Mathews. Bibb superior court. July 18, 1913.
    
      Hardeman, Jones, Park & Johnston, for plaintiff in error.
    
      Mallary & Wimberly, contra.
   Fish, C. J.

1. In a suit for a breach of warranty of a mule, the warranties were alleged as follows: “Said mule so purchased by your petitioners was warranted tp be perfectly sound and healthy and in all respects in good condition, and your petitioners were assured that the .said mule had always been healthy and had never been sickly, and said mule was warranted to your petitioners to be in perfect health and was warranted to' retain her perfect health if properly eared for.” Held, that, under the rule that pleadings are to be construed most strongly against the pleader, the suit was based on an express and not an implied warranty.

(a) The portions of the charge on the subject of implied warranty were not adjusted to the issues made.

2. There was no fatal variance between the allegations and proof on the subject of who were the purchasers of the property.

3. If there were minor inaccuracies in the charge in stating the contentions of the plaintiffs, they became immaterial in view of the rulings above made. Judgment reversed.

All the Justices concur.  