
    5402.
    Stevens v. Glover.
    Decided March 26, 1914.
    Complaint; from city court of Americus — Judge Harper. November 20,1913.
    The instruction referred to in the foregoing decision was as follows : “Where a- seller of live stock guarantees the stock being sold to be sound, such a guarantee relates to the condition of the live stock at the time and place of sale, and covers any unsoundness, known or unknown- to the seller, which may exist at the time and place of sale. I charge you further that if the seller making such a guarantee delivers over to the purchaser one or more head of live stock, if you believe that one or more of such stock were at the time infected with a disease, which later, by the natural progress of that disease, resulted in the disabling or destruction of the property, then, whether the disease at the time of sale was in such a stage as was obvious to casual inspection or npt, there would be a breach of the guarantee, and the purchaser would have a right to recover.”
    Shippi & Sheppard, for plaintiff in error.
    
      W. W. Dykes, contra.
   Russell, C. J.

1. The warranty of a seller of live stock guaranteeing the animals to be sound relates to their condition at the time and place of sale, and covers any unsoundness, known or unknown to him, which exists at that time, and though'the unsoflndness may not become apparent until such a subsequent time as is necessary, in the progress of the disease, to manifest its existence. In the case sub judice, it was error for the court, in instructing the jury substantially as above indicated, to úse the expression “infected with a disease,” when only one specific complaint was mentioned in the petition; but the error was not prejudicial, for if the jury accepted the plaintiff’s testimony, which was the only foundation of the defendant’s liability, they were necessarily confined by the proof to the single disease upon which the liability was alleged to depend.

2. The evidence authorized the verdict.

Judgment affirmed.

Room, J., absent.  