¶1 In this case his Honor states that there was-much testimony, both oral and written, and that at the conclusion of his charge (without showing what his previous charge had been) the counsel on both sides were asked if there was anything overlooked, or anything special they desired given to the jury. To this the defendant’s counsel (the case states) asked the Court to charge the jury, that if they believed the deposition of the defendant, J. T. Murray,, the defendants had acted in the usual course of trade in making the sale of the plaintiff’s fruit. This his Honor refused,. remarking that there, was some conflict of testimony on that point. The conflicting testimony is not set out, nor any part of the testimony, save that portion of the deposition of the defendant, J. T. Murray, upon this point.
¶2 Upon this point the following issue was submitted to-wit: “ Did the defendants sell the fruit in their usual course-of trade ?” This issue was found for the plaintiff. So the only question in the cause is, whether his Honor erred in refusing the instruction requested.
¶3*536 No question is better settled than that it is the duty of the appellant to show error, otherwise the judgment below must be affirmed.
¶4 Now it may be that injustice was done the defendants, on the trial below. If his Honor had deemed the verdict wrong, or contrary to the weight of the testimony, he might have granted a new trial. But the only question here is the single legal question-, whether his Honor erred in refusing the instruction requested. Upon this point we think it clear that from the case sent here no error has been shown.
¶5 The case of Gaither v. Ferebee, 1 Winst. 310, is decisive upon the point that the defendant was not entitled to the instruction asked.
¶6 There is no error.
¶7 Judgment affirmed.