Opinion
41690.
ARGUED JANUARY 3, 1966.
DECIDED FEBRUARY 18, 1966.
Breach of warranty. Fulton Superior Court. Before Judge Shaw.
Thomas M. Odom, Freeman D. Mitchell, Jay Carroll Cox, for appellants. Jones, Bird Howell, Earle B. May, Jr., Trammell E. Vickery, for appellee.
Where, in a suit brought under the provisions of former Code § 96-307 (1), to recover damages on account of the alleged breach of an implied warranty of merchantability and suitability to the use intended of four-inch standard galvanized pipe alleged to have been manufactured by the defendant, the petition as amended alleged "that there was no warning on said pipe that said pipe was not intended for said use," where the term "said use" was shown by other allegations of the petition to be for drilling wells, and where it was not alleged that said pipe was manufactured by the defendant with the intention that it be used for drilling wells, the mere allegation that the defendant knew of the plaintiff's intention to use it for that purpose, if not a mere conclusion under the facts otherwise alleged which showed that it was not purchased from the defendant but from an independent dealer, was insufficient to impose upon the defendant the burden of an implied warranty for such use. "Use intended," as used in the Code section relied upon, means not the particular use intended by the purchaser, even though known to the seller, but means only such uses as the article may have been manufactured for by the manufacturer. Love v. Nixon, 82 Ga. App. 445, 453 ( 61 S.E.2d 423), and cases therein cited. And see also Atlanta Tallow Co. v. J. W. Eshelman Sons, 110 Ga. App. 737, 742 ( 140 S.E.2d 118). The petition here failed to set forth a cause of action, and the trial court properly sustained the general demurrer and dismissed the petition.
Judgment affirmed. Felton, C. J., and Pannell, J., concur.