Axrpellees sued axipellants to recover damages for a breach of warranty of a stallion sold by appellants to axipellees. The complaint alleged a sale, the warranty, the breach and consequent damage. The only answer was a general denial.
The sole question argued relates to the sufficiency of the evidence. By this, although flatly contradicted, appellees proved most directly and explicitly the sale, the warranty, its breach and damage, thus covering all the material averments of the complaint. Appellants’ counsel, however, insist that there is a “failure of proof,” a “fatal variance” and an entire departure from the theory of the complaint, because the evidence also develops that axipellants had previously purchased the horse under a warranty from Powell Bros., with whom
W]e are wholly unable to see any failure of proof or departure from the theory of the complaint. Appellant seems really to have fared better than the isshes authorized. If, in fact, appellees released one-half or all the claim, such release should have been ifieaded. It was not strictly available under the general denial, being matter in confession and avoidance. Crum v. Yundt, 12 Ind. App. 308.
An enforcement of strict rules of pleading might well have deprived appellants of that which they did obtain. We are of opinion that they have no cause for complaint.
Judgment affirmed.