On Motion for Rehearing.
The appellant quotes the statement in Malsby & Avery v. Young, 104 Ga. 205, 212 (30 SE 854) that, “It is only in the absence of an express warranty that resort can be had to an implied warranty” as authority for its contention that it was error to charge and submit the case to the jury on a theory of implied warranty because the written contract contained express warranties. However, the Malsby case is limited in application to exclude any implied warranty which is within the scope of the subject matter of an express warranty, for as further stated therein: “Much would depend upon the nature and extent of the warranty, where it was express, whether any implied warranty would exist in connection with what was expressed.”
Under former Code § 96-301, in effect at the time this contract was made, the seller is bound by the various implied warranties listed therein, including suitability for the use intended, unless there is an express warranty excluding such an implied warranty or such a warranty is excepted by the very nature of the transaction. In the present cases the appellant’s obligation was twofold, to supply described equipment, and to install the equipment, providing necessary installation materials, labor, etc., to do a complete job. The express warranties cover the life of the equipment, one year on motors and controls, and five years on *498the remainder, and the appellant agreed to provide one year free service. The guarantee, if it be deemed a warranty, covers the ability of the system to maintain a 15° differential between outside and inside temperatures under described conditions of temperature and humidity. The appellees do not contend that the appellant has failed to supply equipment in accordance with the warranties, or that the equipment, as a system, is not capable of maintaining the guaranteed temperature differential. The appellees do show evidence, however, sufficient to authorize a finding that the appellant did not install the equipment properly by failing to provide proper ventilation and thus failed in their obligation under the contract to furnish a complete job. Under the circumstances of the present cases it is immaterial whether the cases are treated as involving the breach of an implied warranty to install the equipment in a manner reasonably suitable for intended use or as involving the breach of the contract in failing to furnish a complete job, and it was proper for the trial judge to submit the issue to the jury in terms of whether there was a failure “to install certain air conditioning equipment” in the apartment buildings “in a skilled and workmanlike manner.” There is no merit in any of the contentions of the appellant on motion for rehearing.
Motion for rehearing denied.