Opinion
Decided March 15, 1905.
Assignment of Error — Peremptory Instruction — Request.
A defendant can not complain on appeal of the failure to give a peremptory instruction to find in his favor, where he requested no such charge, but acquiesced in the submission of the case against him to the jury.
Appeal from the County Court of Johnson County. Tried below before Hon. J. D. Goldsmith.
M. L. Daniels, for appellant.
Walker Balker, for appellees.
The National Bank of Cleburne brought this suit against J. E. Francis on a promissory note and to foreclose a mortgage on a vehicle described in the note. Francis answered by general denial and plea of failure of consideration, and, by cross bill, impleaded Cook Bros. Carriage Company and prayed in the alternative a judgment against the company.
There was a jury trial resulting in a verdict and judgment in favor of the Bank against Francis for the debt and foreclosure of the lien, and judgment over in favor of Francis against the Cook Bros. Carriage Company for the amount recovered by the Bank against him.
The Cook Bros. Carriage Co. has appealed, presenting the case on one assignment only, which charges that the court erred in not peremptorily instructing a verdict for the defendant, the Cook Bros. Carriage Company. A sufficient answer to this assignment is the fact that the appellant requested no such instruction when the case was tried. The record shows that considerable testimony was introduced, tending to show a contract of warranty between the defendant Francis and one James N. Gray. In his cross action Francis alleged that Gray, when he sold the vehicle to him, was acting as the agent of appellant and that the warranty was binding upon it, and that issue was submitted by the court to the jury. By failing to request the court to instruct a verdict for it, appellant acquiesced in the course pursued by the trial judge; and is not now in a position to complain because of the failure to instruct a verdict for it.
The judgment is affirmed.
Affirmed.