220 S.W. 428 | Tex. App. | 1920
Notwithstanding, it appears from a recital in the judgment that he agreed that the cause should be submitted to the jury on special issues, and notwithstanding it appears from another part of the record that he requested the court to submit to the jury an issue as to whether the notes sued on were "executed solely for the purpose of paying for stock in the Commonwealth Trust Company," appellant complains because the court refused to give to the jury a charge he requested, instructing them to return a verdict in his favor.
Perhaps the contention should be overruled without reference to its merits, because appellant was in the attitude, by reason of the facts stated, of having waived a right to complain in any event of the refusal of the court to give such an instruction (Sanford v. Railway Co., 143 S.W. 329; Cement Co. v. Young,
It is true it does not directly appear from testimony we have found in the record that the trust company at the time specified was a corporation; but in his pleadings appellee alleged it was, and no complaint of the judgment on the ground that it was made in the court below. On the contrary, it appears the case was tried on the assumption that the company was a corporation, as appellee alleged it was. Under these circumstances we do not think appellant should be heard to complain as he does here. Sanford v. Railway Co., supra; Cement Co. v. Young, supra.
We regard the insistence that the trial court should have treated the notes as valid, notwithstanding they were given for stock of a corporation, because it did not appear that the stock was ever in fact issued, and as not without a consideration, because it did not appear that the trust company "is not capable of issuing stock for same as was originally agreed," as without merit. It was not disputed in the testimony that the Commonwealth Trust Company "went defunct," as appellant, testifying as a witness, expressed it. If it did, of course it could not thereafter comply with its undertaking to issue shares of its stock to appellee, and hence the consideration for the notes failed That would be a good defense against appellant's suit, because it appeared that the trust company was still the owner of the notes when the first of the series matured. Taking the notes as appellant did after one of them had matured, they were subject in his hands to the defenses which could then have been urged against them had they remained in the hands of said trust company. Kampmann v. McCormick, 99 S.W. 1147; Harrington v. Claflin,
*430The judgment is affirmed.