J. S. McCall & Sons v. Roemer

186 S.W. 409, 1916 Tex. App. LEXIS 646

• Court: Court of Appeals of Texas
• Decided: May 17, 1916
• Docket: No. 5678.
• Status: Published

Opinion

MOURSUND, J.

J. S. McCall & Sons sued E. Roemer and L. Y. Bigham on an account for goods, wares, and merchandise alleged to have been sold to said Bigham at the instance and request of Roemer and upon the credit of the latter and in order to enable Bigham to make a crop on Roemer’s farm during the year 1914. Bigham, in open court, admitted the justness of the account. Roemer, in addition to a general denial, specially denied that he requested plaintiffs to sell Big-ham any goods or that he promised to pay the account, and, in addition, plead the statute of frauds. The jury, pursuant to the peremptory instruction of the court, returned a verdict in favor of defendant Roemer and against Bigham. Judgment was entered in accordance with the verdict, and plaintiffs appealed.

All of the assignments of error are directed at the ruling of the court in giving the peremptory instruction to return a verdict in favor of Roemer. It does not appear from the record that plaintiffs interposed any objections to the giving of such instruction. No exception was taken to the ruling until the motion for new trial was presented. This court has recently held that the statute requiring objections to be made to the charge, and exceptions to be saved to the ruling thereon, applies to a peremptory instruetion. Strong v. Harwell, 185 S. W. 676, not yet officially reported.

As appellants are not in a position entitling them to complain of the charge, the assignment must be overruled.

Judgment affirmed.