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.,
Affirmed.