
    RUMLEY PRODUCTS CO. v. MOSS.
    (No. 5680.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1916.)
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge. Suit by T. H. Moss against the Rumley Products Company. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, Eidson & Eidson, of Hamilton, and Sadler & Cobb, of Gatesville, for appellant. Langford & Chesley, of Hamilton, for appellee.
   RICE, J.

Appellee brought this suit against appellant to recover damages for the value of a crop of peas, alleged to have been sustained on account of appellant’s shipping him a thresher without the necessary attachments thereto, purchased by him from appellant for threshing and preparing the peas for market; alleging that the object of said purchase was made known at the time thereof to appellant, claiming that it fraudulently represented that the thresher could be successfully operated for threshing peas, which representations proved to be untrue, whereby he sustained the loss alleged. The case was before us on a former appeal (see 175 S. W. 1084 et seq.), to which reference is made for a full statement of the pleadings and evidence, and was reversed on the .sole ground that appellee failed to show the proper measure of damages, in that there was no pleading and proof as to the cost of preparing and transporting the crop to market; all other contentions being resolved in favor of ap-pellee. As per agreement of counsel on the second trial, the case was submitted on the same pleadings and evidence as formerly, except as to the measure of damages, upon which issue the pleading was amended, and additional proof offered to supply the deficiency in this respect. A trial before the court without a jury resulted in a judgment in favor of appel-lee, from which this appeal is taken. It was further agreed that the case should be submitted on the old briefs, so that, for all purposes, this record presents the identical questions adjudicated by this court on the former appeal, in which we held against appellant on all the issues there raised, except the one of the measure of damages, as above indicated, which error we hold has been cured by the proof on this appeal. We therefore refer to and adopt the original opinion of the court in that case as the opinion in this, and affirm the judgment of the trial court, but decline to award 10 per cent, damages for delay, as requested by appellee. The judgment of the court below is in all things affirmed. Affirmed.  