
    PECK v. WARNER et al.
    No. 9454.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 28, 1934.
    Rehearing Denied Jan. 23, 1935.
    J. F. Carl, of Edinburg, for plaintiff in error.
    Robert E. Kirkpatrick, of Mercedes, for defendants in error.
   BICKETT, Chief Justice.

L. P. Peck, defendant below, appeals from a judgment rendered against him in favor of D. A. Warner and Dorothy Warner, plaintiffs below, for the sum of $540 as damages for breach of a contract for the purchase of 1,800 citrus trees.

The sole question on appeal is whether the plaintiffs made out a case under the petition and the proof by sufficiently showing facts to furnish a legal measure of damages. The defendant filed a general demurrer and general denial, cross-examined no witness, and offered no evidence. The judgment shows that no demurrer or exception to the petition was presented to the trial court. The petition, having alleged the contract, the breach thereof and, in general terms, the damage sustained by the plaintiffs, was not devoid of a statement of a cause of action so as to require a denial of relief thereunder. In such a case the demurrer is regarded as being waived, because it was "hot presented to the trial court, and no fundamental error is considered shown, because there is a right of action shown. The evidence, as a whole, showed on 'the subject of the measure of damages that there was no market value for the trees at the time and place of delivery, or ■elsewhere, and that the trees had no intrinsic value. The evidence was sufficient to sustain the judgment.

The judgment is, therefore, affirmed.  