
    12716.
    HARRELL v. HAGAN GROCERY COMPANY.
    No expression of opinion as to what had been proved.is contained in the extract from the charge of the court to which exception is taken; and that part of the charge, when considered with- the remainder of the charge, which was clear and full, was not of such harmful character as to require the grant of a new trial.
    Decided November 29, 1921.
    Action on contract; from Seminole superior court — Judge Worrill. June 28, 1921.
    
      W. V. Custer, for plaintiff in error.
    
      John R. Wilson, John F. Drake, contra.
   Hill, J.

This is an action for breach of warranty of quality and weight of a carload of peanuts. The verdict was against the defendant, and in his motion for a new trial he complained of the following part of the charge of the court: “If, on the other hand, the defendant made a mistake in his representations of the weight of the peanuts to the plaintiff, if. there was any error about it, if he made a mistake in weighing them, then he would be responsible for such mistake, and if the evidence satisfies the jury that there was an actual shortage in the weight that the defendant represented to the plaintiff to be correct — that is the weight of the peanuts.” Objection was made to this portion of the charge on the ground that “ it made the actual shortage reported from destination the determining element fixing the defendant’s liability, when such shortage might have arisen from some other intervening cause, for which the defendant could not have been held responsible under the contract of warranty ; and because the statement of the court, ‘ that is the weight of the peanuts,’ was the expression by the court of an opinion as to what had been proven about the weights at destination by plaintiff’s evidence.” While this portion of the charge, as it comes to this court in the record, is not entirely clear, it was not an expression of an opinion by the court as to what had been proved, and, when taken in connection with the remainder of the charge, which was clear and full, it was not of such harmr ful character to the defendant as required the grant of a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.  