This suit was brought by appellant for the benefit of his wife against the appellee for $1,000 damages, for failure to deliver a telegram, announcing the death of the said wife's sister, in time for them to attend the funeral.
Tried by the court without a jury and resulted in judgment for defendant, from which an appeal has been perfected.
The only proposition in appellant's brief is that the court erred in failing to file findings of facts and conclusions of law after request made in conformity with the statute.
There was no assignment of error respecting this matter filed in the trial court as required by article 1612, Rev.Civ.Statutes of Texas.
Appellee by brief has called this court's attention to this fact, and urges that the assignment cannot be considered. This is well taken, because a failure to file assignment of error in the court below distinctly *Page 602 specifying the grounds on which appellant relies constitutes a waiver. Pollard v. Allen Sims (Tex. Civ. App.) 171 S.W. 302; Waldon v. Davis (Tex. Civ. App.) 185 S.W. 1000.
Finding no error assigned or fundamental, the cause is affirmed.