
    SWEETWATER COTTON OIL CO. v. PARKER.
    No. 2667.
    Court of Civil Appeals of Texas. El Paso.
    April 21, 1932.
    J. M. Caldwell, of Midland, for appellant.
    Paul Moss, of Odessa, for appellee.
   HIGGINS, J.

Appellee bought from appellant 600 sacks of cotton-seed cake. The. sale was made upon sample exhibited with warranty of 'quality equal to sample. This suit is by appel-lee to recover damages, it being alleged the cake delivered was inferior to tbe sample and of but little or no value. Upon trial without a jury the court found that the cake did not correspond with the sample, was of inferior quality, of but little or no value; that 166 sacks were worthless, and rendered judgment in plaintiff’s favor for $215.80, the price paid for said 166 sacks.

Part of the cake was carried to plaintiff’s Andrews county ranch and part to hist ranch in Ector county. Of that sent to the Andrews county ranch, 83 sacks were of inferior quality. The evidence fails to show any of the cake sent to that ranch to be-worthless. The plaintiff’s own testimony shows that it was fed and could not be regarded as worthless. The evidence fails to show that any of - the cake sent to the Ector county ranch was worthless. The finding that 166 sacks were worthless is unsupported by the evidence and necessitates reversal.

Assignment No. 2 complains of the-overruling of a special exception to the petition. The record fails to show that action by the court upon the exception was invoked. It is therefore considered as waived. The defect in the petition can and should be cured by amendment. A number of other questions are raised in the brief, but it is unnecessary to consider same, as they relate to matter» ’which should not recur upon retrial.

Reversed and remanded.  