
    SANFORD v. NUECES RIVER VALLEY R. CO. et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1912.)
    Appeal and Eeeoe (§ 882) — Estoppel to Allege Eeeoe.
    Where appellant requested charges which were given on the only issue in the case, and tried the case upon the theory that there was evidence warranting its submission to the jury, he is estopped from claiming, on. appeal, that the testimony is not sufficient to sustain a verdict for appellees.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3602-3604; Dec. Dig. § 882.-*]
    Appeal from Bee County Court; T. M. Cox, Judge.
    Action by H. W. Sanford against the Nueces River Valley Railroad Company and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    G. C. Robinson and R. L. Oox, for appellant.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JAMES, C. J.

H. W. Sanford sued on a promissory note. The defense was failure of consideration. There was a verdict against plaintiff. The case was submitted to the jury on said issue. The assignments of error question the judgment upon the ground that the verdict was contrary to and unsupported by the evidence. In no other respect are the proceedings questioned.

This was not the position taken by appellant at the trial. On the contrary, he asked charges submitting the issue, which were given. He tried the case, and participated in its being submitted on said issue, upon the theory that there was evidence warranting its submission to the jury. The matter is not even complicated with a request for a peremptory instruction, as is usual in such case. Appellant is estopped to claim, on appeal, that the testimony is lacking in sufficiency to sustain the verdict. Poindexter v. Receivers of Kirby Lumber Co., 101 Tex. 323, 107 S. W. 42.

Affirmed.  