
    HEUERMANN et al. v. BULTINGHOUSE.
    No. 8867.
    Court of Civil Appeals of Texas. San Antonio.
    June 22, 1932.
    Rehearing Denied July 13, 1932.
    Jas. G¡ Cook and W. B. Moss, both of Sin-ton, for appellants.
    E. B. & Howell Ward, of Corpus Christi, for appellee.
   PLY, O. J.

This is a suit for a debt, instituted by ap-pellee against William Heuermann and H. E. Watson, in the sum of $3,750, alleged to have grown out of a transaction about an onion crop.

The cause was submitted to a jury through nine special issues, and on the responses thereto a judgment was rendered in favor of ■ appellee for the sum of $586.25.

1 The jury found that appellee’s onion crop was. damaged by water prior to May 18, 1931, so as to render the onions worthless and unmarketable; that 6,375 sacks were so damaged; that appellee raised 212 bushels or sacks of U. S. No. 1 onions on his tract of land'; that appellants did agree to buy from appellee onions that were commercial, but below the grade of U. S. No. 1; that appellee raised and tendered to appellants 2,125 sacks of commercial onions; and that appellants did not accept and use any of the onions.

There is but one proposition which involves, in fact, but one contention, and that is that the proof must follow the pleadings, or, as commonly legally stated, the allegata and probata must correspond. The contract pleaded was for the delivery of U. S. No. 1 onions, which appellee admitted he could not deliver, and set up damages for a refusal upon the part of appellants to accept an inferior grade of onions, known as commercial onions. The petition failed to allege that appellants ever contracted for commercial onions, but, on the other hand, alleged a refusal to accept commercial onions when tendered.

The verdict of the' jury was not supported by the pleadings or the facts.

The judgment is reversed, and the cause remanded.  