
    5691.
    Williams-Thompson Co. v. Marshburn.
    Decided January 20, 1915.
   Wade, J.

1. Under a written contract for the purchase of cantaloupes, in which it was stipulated that they were “to be shipped” by the seller on a certain day, “such shipment to be free of split-ends arid overripe stock,” the court did not err in instructing the jury that “the place at which the warranty in question [that the melons were free of split-ends and overripe stock] is to be complied with is the place where the cantaloupes were delivered to the railroad” for shipment.

2. There was evidence directly and positively sustaining the plaintiff’s contention that he delivered the cantaloupes in accordance with his contract, “free of split-ends and overripe stock,” to a common carrier, for shipment; and while there was evidence in behalf of the defendant tending to show that the melons arrived at destination in an overripe condition, the verdict of the jury settled the question of fact.

3. There is no merit in any of the assignments of error.

Judgment affirmed.

Complaint; from municipal court of Atlanta. April 20, 1914. Dillon, Burr ess & Kobah, for plaintiff in error.

Hewlett, Dennis & Whitman, contra.  