
    Pickens v. Rodobaugh.
    
      Appealfrom. Jefferson District Oowrt — Monday, July 25.
    WARRANTY: INSTRUCTION.
    Action to recover the value of one hundred and fifty sheep, sold ■and delivered by plaintiff to defendant. Trial to a jury; verdict for plaintiff; defendant appeals.
    
      D. P. Stubbs for the appellant — Ratcliff & Gibson for the appellee.
   Beck, J.

The defenses set up in the answer, in different counts, are, failure of consideration, a breach of a contract of warranty of the ■soundness of the sheep, and false and fraudulent representations as to their soundness, whereby defendant was induced to purchase them.

The only error assigned and complained of is, the giving of the following instruction to the jury by the court. “A warranty is not to be implied when the purchaser has the opportunity of inspecting the articles sold.”

While the correctness of this instruction as the announcement of an abstract principle of law is not denied by appellant’s counsel, he insists that it is not applicable to the facts and pleadings of the case, ■and was calculated to mislead-the jury. We are relieved of the necessity of deciding whether the instruction is an expression of a sound rule of law, and are only required to determine its applicability to the ■case. Neither the evidence in full, nor any part thereof, is given in the record. We are unable, therefore, to know what issues are presented by the evidence to the jury, and, of course, cannot say that the instruction was not applicable thereto. The second count of defendant s answer avers that the sheep were sold as sound and healthy, when, in fact, they were diseased and unsound; and the third count avers that plaintiff warranted their soundness. In our opinion, the second count probably presents the issue to which the illustration was intended to apply. Neither do we think it inapplicable to the issue under the third count, as it is not averred whether the warranty therein set up is express or implied. The general averment of a warranty will authorize evidence of either an express or implied contract of that character. We cannot, therefore, say that the instruction is inapplicable to the issues of the case.

Affirmed.  