
    Scott v. Holland.
    
      Action for Deceit in Sale of a Chattel.
    
    [Decided February 13, 1902.]
    1. Action or deceit, when will not lie; warranty; general charge. In an action for deceit in the sale of. a mule, under Form 21, Code, page 947, where the evidence for plaintiff tends to .show only a warranty of the mule’s soundness, and that it was unsound, and there is no evidence of false representations or deceit on the part of defendants, the general affirmative charge for defendants is proper.
    Appeal from Crenshaw Circuit Court.
    Tried before the Hon. B. R. Bbiciíen, Special Judge.
    Action for deceit in the sale of a mule. Plaintiff testified that defendants guaranteed the mule to be sound at the time of the trade; that at that time the plaintiff examine the mule and called defendants’ attention to the fact that there was a cut on the eye and one on the leg of the mule; that defendant stated that it had been done by a wire, but that he would guarantee the mule, and thereupon plaintiff took him. 'Several weeks afterwards the mule’s eye ran water and finally went out; his leg became swollen, and other defects appeared. Defendants’ evidence tended to show that no warranty was made. The defendants requested, among other charges, the general affirmative charge, and assigns its refusal as error.
    Rushton & Powell, for appellants,
    cited Jordan & Sons v. Pickett, 78 Ala 331; 14 Am. & Eng. Ency. Law (2d ed.), 23.
    C. E. Hamilton, for appellee.
    No brief same to the hands of the Reporter.
   McCLELLAN, C. J.-

— Action by Holland against J. B. and W. W. 'Scott, partners, etc. Complaint in Code form for deceit in the sale of a mule by defendants to plaintiff. — Code, p. 947, Form 21. On the trial there was some evidence of a warranty on the part of defendants of the animal’s soundness and that it was unsound. But there was no evidence of false representations or deceit on the part of defendants. The action should have been on tire warranty. (Code, F. 22.) The complaint for deceit being unsupported by any evidence, the court should have given the affirmative charge requested by defendants.

Reversed and remanded.  