
    [No. 7728.]
    Gromm v. Fybush et al.
    Judgment predicated upon finding of facts not supported by any testimony reversed.
    
      Error to Denver County Court. — Hon. Geo. W. Dunn, Judge.
    Mr. W. W. Dale, and Messrs. Orahood & Orahood, for plaintiff in error.
    
      Decided Nov. 2, A. D. 1914;
    Rehearing denied December 7, A. D. 1914.
    Mr. R. A. Smith, and Messrs. Bicksler, Bennett, Dana & Blount, for defendants in error.
   Mr. Justice Gabbert

delivered the opinion of the court:

Gromm refused to accept goods ordered of Fybush Brothers and returned them, for the reason that they were not of the quality ordered. The latter refused to receive the goods, and brought suit for the contract price. The sole issue of fact was whether the goods were of the quality ordered. The court found this, issue in favor of the plaintiffs and rendered judgment against defendant.

The testimony on the part of the-defendant stands undisputed that the goods were much inferior to the samples from which they were ordered. True, plaintiffs' introduced, testimony, which was intended to prove that they were of the same quality as the samples, but it did not tend to contradict the testimony of the defendant. A judgment predicated upon a finding of fact which there is no testimony to sustain is erroneous. The judgment of the County Court is reversed and the cause remanded for a new trial.

Judgment reversed.

Mr. Chiee Justice Musser and Mr. Justice Bailey concur.  