
    F. C. VICKERY, Appellant, v. Abe B. FREEMAN, Appellee.
    (No. 8109.)
    Court of Civil Appeals of Texas. San Antonio.
    April 24, 1929.
    On second motion for rehearing. For former opinion, see 15 S.W.(2d) 85. *
    W. E. Chapman, of Ennis, and A. J. Wirtz and R. A. Weinert, both of Seguin, for appellant.
    Dibrell & Mosheim, of Seguin, for appellee.
   SMITH, J.

In a further motion for rehearing, appellee complains that we have not fairly stated the terms of the contract sued on, and insists upon the incorporation into the statement of the case of the following cox--respondence between the parties prior to the correspondence set out in the opinion last filed:

“Appellees wrote Appellant on August 30th, 1927, as follows:

“ ‘Vickery Nut Co., Ennis, Texas — Dear Sir: We are in receipt of yours of August 29th in regards to pecan sample.

“ ‘We can supply you with 10,000 pounds or more at price quoted; as good or better than sample. If you care to close contract, kindly mail us your check for $500.00; as agreed upon when you were here. Also let us know if you want the 5000 pounds pecan halves.’

“In reply to the above lettei', Appellant wrote Appellees on September 1st, 1927, as follows:

“ ‘Abe B. Freeman, Seguin, Texas — Dear Sirs: We are today in receipt of your favor of August 30th offering us 10,000 pounds or more of pecans as good or bettor than sample submitted. We want to contract for at least 20,000 or 25,000 or more.

“ ‘Upon receipt of your advice that you will furnish us 20,000# or more we will be glad to forward to you our cheek for $500.00.’ ”

Appellee also insists upon the inclusion in the statement of the case this testimony of appellee:

“We shipped Mr. P. O. Vickery some pecans by express, under this contract. I think we shipped him ten sacks. Everything was sold f. o. b. Seguin to him. I do not remember whether the ten sacks were sent c. o. d. to him or not, but everything that we sold him was supposed to be f. o. b. Seguin.”

We do not understand this evidence to be material to the statement of the case or as having any influence upon the decision, but have set it out, nevertheless, in deference to appellee’s criticism.

The motion for rehearing is overruled.  