
    DORMAN v. BOEHRINGER.
    (No. 5863.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 15, 1917.)
    Sales <@^>417 — Evidence—Sufficiency.
    In action for breach of contract for the sale of corn, evidence held not to show the difference between the contract price for No. 2 corn and the market price for such com at the time it should have been delivered.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 1173.]
    Appeal from Maverick County Court; Ben V. King, Judge.
    On rehearing.
    Former opinion set aside, and judgment of the trial court reversed, and cause remanded.
    For former opinion, see 195 S. W. 669.
    Sanford & Wright, of Eagle Pass, and Chambers & Watson, of San Antonio, for appellant. J. E. White, of Eagle Pass, and T. J. Murray, of San Antonio, for appellee.
   FLY, C. J.

The court on its own motion sets aside the former judgment in this case and grants a rehearing, for the reason alone that we have become convinced that there was no evidence as to the market values of No. 2 sacked white corn at Eagle Pass, which was the kind of corn which appellant agreed to deliver at Eagle Pass. There is no testimony on the subject except that appellee’s agent bought corn in the open market at $1.05% to $1.07% a bushel. The evidence did not in any manner tend to show that kind of corn was bought, but it did appear that ap-pellee concluded he wanted No. 3 instead of No. *2 corn, and that No. 3 is worth more than No. 2 corn. The No. 3 corn could only be bought in Texas at that time. Which did he buy in the open market? The evidence fails to show. While, as held in our former 'Opinion, it might be presumed that the market price was paid for the corn, but what 'Class we cannot presume, especially as ap-pellee wanted No. 3 corn and had so telegraphed to appellant. The case was not developed, and upon a reconsideration we do not feel disposed to affirm the judgment on .the loosely constructed and uncertain testimony.

There is but one proposition of law stated in our former opinion, and that is as to principals and agents, and that proposition is elementary, and could not possibly be in conflict with any opinion by any court. The motion to certify is overruled. We adhere to our former opinion as to every matter except as to the sufficiency of the evidence to show the difference in the contract price for No. 2 com and the market price of such corn in Eagle Pass at the time the corn should have been delivered.

Tire judgment is reversed, and the cause remanded. 
      @a=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     