
    10359.
    Compton v. Woodruff Machinery Manufacturing Company.
    Decided June 12, 1919.
    Complaint; from Madison superior court—Judge W. L. Hodges. November 3, 1918.
    Woodruff Machinery Manufacturing Company sued Compton on an open account for $175, alleged to be difference due in swapping engines between plaintiff and defendant.” The defendant pleaded, and on the trial testified, that in the transaction in which the plaintiff’s engine was traded to him, the plaintiff guaranteed its engine to be a twelve horse-power engine and in good condition, and guaranteed that it would do a third more work than the engine which the plaintiff was getting from him; that after he received the plaintiff’s engine he gave it a thorough test, and it failed to do the work it was guaranteed to do, and after he had notified the plaintiff of this fact the plaintiff failed to make the engine do the work it was guaranteed to do, and refused to exchange back. The agreement was not in writing. The plaintiff contended that no such warranty was made. The trial judge charged the jury on the law- applicable to an express warranty, and then charged as to implied warranty, in the terms of the Civil Code (1910), § 4135.' The verdict was against the defendant, and, his motion for a new trial being overruled, he excepted. In the motion the charge as to implied warranty is complained of, on the ground that, the defense being express warranty, the court should not have given in charge the law of implied warranty.
    
      Gordon & Gordon, Thomas J. Shackleford, for plaintiff in error, cited:
    Civil Code (1910), § 4135; 7 Ga. App. 399; 1 Ga. App. 379; 136 Ga. 754; 133 Ga. 807(1); 130 Ga. 730; 104 Ga. 313; 71 Ga. 470; 143 Ga. 464.
    
      Berry T. Moseley, contra, cited:
    4 Ga. App. 716(1), and cit.; 13 Ga. App. 173, and cit.; 14 Ga. App. 334(6); 143 Ga. 464(1); 108 Ga. 817(1); 144 Ga. 88; 36 Ga. 649(3).
   Luke, J.

Where there was a sale of personal property under an express warranty as to quality, and in defense to a suit for money alleged to be due for the property an express warranty was pleaded, it was error for the court to charge on the subject of implied warranty. On account of this error the judgment overruling the motion for a new tria! is

Reversed.'

Wade, C. J., and Jenkins, J., concur.  