Jameson v. Consolidated Oil Co.

*310 PANNILL, O. J.

The suit was by appellee to recover on a verified account for goods and merchandise sold by appellee to appellant. The defense was a breach of an implied warranty as to the quality of the merchandise; that it was inferior in quality and worthless. The verdict and judgment thereon was for appellee.

The appeal is based on assignments to the court’s action in the exclusion of evidence offered and instructions given. It is unnecessary to discuss these matters, ás appellant by neither pleading nor testimony, presented any defense to appellee’s suit.

Appellant admitted receiving the paint and oil sold him by appellee, and using the same in painting certain buildings, and collecting for the paint so used, and had never refunded any amount to the parties, who paid for the paint used by appellant; that he used all but a small quantity in this manner, but did not state the amount he failed to use. The only testimony showing any damage accruing to appellant was his statement that he had to buy some other paint, because of the inferior quality of that sold by appellee; but the quantity bought is not stated.

It is clear that, under the facts of this ease, appellant’s only defense was damages for breach of warranty. The authorities supporting this proposition are to be found in J. B. Colt v. Reeves (Tex. Civ. App.) 266 S. W. 564 . Appellant’s pleading sought to defeat the action entirely, alleging the paint sold him to be worthless, and did not suggest an offset for damages. As stated, his evidence showed the use of the paint and furnished no basis to ascertain any amount of damaged.

The court should have directed a verdict for appellee for the amount of the contract price of the goods; therefore the assignments referred to become immaterial.

No complaint is made in the brief of the amount awarded appellee.

The. judgment is affirmed.