¶1We do not think there was any error in permitting testimony on behalf of defendant of the manner and effect of his using in the cultivation of his crops the article in controversy, represented to be sea fowl guano. This *233testimony seemed relevant to the inquiry whether or not the commodity sold to him was the article he had ordered or a . different one.
¶2The first charge asked on behalf of plaintiff and refused by the court, was written in terms which might have misled the jury. In view of the character of the controversy, they might have supposed that if defendant did not “ ash for a warranty,” he could not avail himself of a warranty voluntarily given by the person he contracted with, or arising out of the circumstances attending the transaction. It was not error, therefore, to refuse it as written. The rule in this respect is thus set forth in other cases : “ To entitle the purchaser to recover for any defect in the quality or soundness of the article or property sold, except under special circumstances, he must prove that the seller warranted the thing sold to be good and sound, or that he concealed or fraudulently misrepresented its qualities.” “ A bare representation or assertion as to the quality of the property, if so intended and understood, by the parties, will amount to a warranty.” — Barnett v. Stanton, 2 Ala. 184.
¶3There was no error in refusing the charge numbered 5th, asked by plaintiff. It commits it to a jury to determine whether the written or printed articles referred to “ warranted the guano to produce beneficial results.” To construe such articles is within the province of the judge.
¶4The suit being upon a written contract for the delivery by defendant of a specific quantity of cotton, or a particular sum of money, for the article sold as sea fowl guano, without any common count, there was no error in the charges given by the court and excepted to by plaintiff.
¶5Let the judgment of the Circuit Court be affirmed.