
    (82 South. 573)
    BATTLES v. WHITLEY.
    (7 Div. 502.)
    (Court of Appeals of Alabama.
    June 10, 1919.)
    1. Sales <&wkey;262 — Representations — Warranties.
    Representations, in order to amount to a warranty, must be relied upon by purchaser.
    2. Sales <&wkey;246 — “Warranty.”
    A warranty is a collateral undertaking forming a part of the contract by the agreement of the parties, express or implied.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Warranty.]
    3. Sales &wkey;^246 — Antecedent Representations — Warranties. ,
    Antecedent representations made by seller as an inducement to buyer, but forming no part of the contract when concluded, are not warranties, but where, by agreement of parties, they enter into and form a part of the contract of sale, they are warranties.
    <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4. Exchange of Property <&wkey;13(3) — Warranty — Burden of Proof.
    Defendant, pleading indebtedness by plaintiff by reason of breach of warranty made in exchange of mules, has burden of proving the existence of warranty and breach thereof.
    5. Trial <&wkey;260(l) — Requested Instructions.
    Refusal of requested charge was not reversible erroi', where the subject-matter was adequately covered by the oral charge.
    Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
    Action by T. A. Battles against A. O. Whitley. Erom judgment rendered, plaintiff appeals.
    Affirmed.
    James A. Embry, of Ashville, and Frank B. Embry, of Pell City, for appellant.
    C. P. Robinson, of Pell City, for appellee.
   BRICKEN, J.

The plaintiff, Battles, brought suit against the defendant, Whitley, to recover the sum of $50 for rent due for the year 1916. Among other defenses to this suit the defendant pleaded that the plaintiff was indebted to him in the sum of $50 on account of the breach of a warranty made by the plaintiff to the defendant in a transaction in which plaintiff and defendant had exchanged mules. It is alleged that in this transaction the plaintiff warranted the mule he conveyed to defendant to be “a good work mule,” and was not afraid or scared of automobiles. Plaintiff denied this, and this was the sole issue in the case.

Representations, in order to amount to a warranty, must be relied upon by the vendee, and if the testimony shows that such representations were not relied upon .by the vendee, then they do not amount to a warranty. A warranty is a collateral undertaking forming a part of the contract by the agreement of the parties, express or implied. Antecedent representations made by the vendor as an inducement to the buyer, but forming no part of the contract when, concluded, are not warranties, and, on the contrary, such antecedént representations, which by the agreement of the parties enter into and form a part of the contract of sale, are warranties. 35 Cyc. 376; Williams v. Cannon, 9 Ala. 348; Benjamin on Sales, p. 563.

The general charge of the court conformed to the principles of law applicable to a case of this sort. The nature of a warranty was properly explained to the jury. The burden of proving the existence of a warranty and breach of same was placed upon the defendant.

The special charges requested by the plaintiff were all defective except' charge numbered 1. The refusal of this charge cannot work a reversal, for the'reason that the oral charge of the court completely and adequately covered the subject-matter of this particular charge, and under the oral charge of the court the plaintiff had the full benefit of the statement contained in the special charge.

The record is free from error, and the judgment of the lower court is affirmed.

Affirmed.  