
    KELLY v. WALTER CONNALLY & CO.
    (No. 2594.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 16, 1922.)
    Set-off and counterclaim <s=o35(2) — Sustaining exception to answer pleading set-off for un-liquidated damages for breach of warranty not arising out of contract sued on not error.
    Where the claim on which an action for goods sold was liquidated within the meaning of Rev. St. art. 1329, there was no error in sustaining exception to defendant’s answer pleading an offset for unliquidated damages for breach of warranty which did not arise out of the contract sued on.
    Appeal from Cherokee County Court; C. F. Gibson, Judge.
    Action, by Walter Connally & Co. against J. C. Kelly. From an order striking certain parts of his answer, defendant appeals.
    Affirmed.
    Frank B. Guinn, Perkins, & Perkins, and Thos. Shearon, all of Rusk, for appellant.
    Norman, Shook & Gibson, of Rusk, and Butler. Brice & Maynor, of Tyler, for ap-pellee.
   HODGES, J.

The appellee sued the appellant to recover the sum of $652.94 on -a verified account for goods, wares, and merchandise sold to the appellant. Among other defenses the appellant pleaded as an offset damages in the amount of $900 for breach of warranty and a contract of a sale of some machinery theretofore made. On exception that portion of the appellant’s answer was ■ stricken out. The correctness of that ruling is the only issue presented in this appeal.

It clearly appears from the record that the claim upon which the suit is founded was liquidated within the meaning of the statute, and that the offset pleaded by the appellant was for unliquidated damages which did not arise out of the contract sued on. The exception to the special answer was properly sustained. Revised Civil Statutes, art. 1329; Ajax-Grieb Rubber Co. v. Byars & Thompson (Tex. Civ. App.) 153 S. W. 921; Brooks Tire Machine Co. v. Shields, 48 Tex. Civ. App. 531, 108 S. W. 1005.

The judgment ‘is affirmed.  