(concurring). I concur in re'versing the judgment and order appealed from, on the ground that there was no evidence whatever of a waiver. This being so, it was unnecessary to request the judge to submit to the jury the question whether there was a waiver' or not. There was no conflict of testimony on this subject, and consequently nothing to submit to the jury. The judge having decided upon the uncontroverted facts that there was a waiver, as matters of law, an exception to such decision properly brings before the court on appeal the question whether such decision was correct or not.
I cannot, however, concur in the view that upon a case the *471court can reverse a judgment, simply because it is of opinion that the merits have not been fully and fairly tried, and that injustice . has been done, in a case where no objections or suggestions were made on the trial, the disregard of which has resulted in an erroneous judgment.
My views on this subject are fully expressed in the case of Crow v. Becker (5 Robert., 262), and I see no reason for changing them.