
    FISHBURN MOTOR CO. v. DAVIS.
    (No. 9658.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 23, 1926.)
    1. Pleading <&wkey;389 — Fatal variance cannot be claimed, where substance of issues tendered by plaintiff was sustained by evidence.
    Where substance of issues tendered by plaintiff, in action to recover amount paid for automobile, was sustained by evidence, it could not be claimed that there existed a fatal variance between pleadings and proof.
    2. Appeal and error <&wkey;>l 170(10) — Application of incorrect measure of damages will not cause reversal, where judgment is proper .(Court of Civii Appeals rule 62A).
    Where no right causing rendition of improper judgment was denied defendant by application of incorrect measure of damages, judgment will be affirmed under Court of Civil Appeals rule 62A.
    Appeal from Dallas County Court; Paine L. Bush, Judge.
    Action by L. W. Davis against the Fish-burn Motor Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. B. Harrell, of Dallas, for appellant.
    Nathaniel Jacks, of Dallas, for appellee.
   LOONEY, J.

L. W. Davis sued Fishbum Motor Company for damages arising from the sale of a Ford touring car.

Plaintiff alleged, in substance, that the defendant sold him the car with the understanding that the same was in a good mechanical condition; that the car delivered was defective and unsatisfactory, and anothJ er car was delivered which also proved to be defective and not mechanically correct. He alleged that he paid the defendant $200, being the estimated value of an old car that he put in on the trade. Other phases of the case are presented in the pleadings not necessary to be mentioned, in view of the disposition which we make of the case. The case was submitted to a jury on special issues, and resulted in judgment in favor of plaintiff for $200.

Only two propositions are urged by appellant: (1) That .there exists a fatal variance between the pleadings and proof; and (2) that the court erred in submitting the case on an incorrect measure of damages.

Neither of these contentions, in our opinion, should be sustained. The substance of the issues tendered by plaintiff in his pleadings was sustained by the evidence, and, while the court erred in applying an incorrect measure of damages, no right was thereby denied appellant reasonally calculated to cause, and that did cause, the rendition of an improper judgment. We therefore affirm the judgment under rule 62a, promulgated for this court. Stephenville N. & S. T. Ry. Co. v. Walton (Tex. Civ. App.) 160 S. W. 651; Empire Trans. & Stor. Co. v. Botto (Tex. Civ. App.) 232 S. W. 347.

Affirmed. 
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