On Motion for Rehearing.
Appellee contends by his motion for a rehearing that we should not reverse and render judgment in favor of the appellants Way, but that we should reverse and remand the case because he asserted two causes of action by his pleadings, one on the contract passed upon by this appeal, and another for misappropriation 'of the corporate funds by the Ways and Bevers. The latter cause of action, if appellee had any such cause of action independent of the contract, which question we do not find it necessary to determine, was not submitted to the jury by the trial court, nor was it requested to be submitted by ap-pellee in so far as the record discloses, and appellee has not cross-assigned error here because the court failed or refused to try or submit that cause of action to the jury. Under such circumstances, appellee will be held to have waived the cause of action in reference to misappropriation of corporate funds.
Appellee insists that we erred in taxing all costs of this appeal against appellee. Our judgment only taxes the costs incurred in the suit of appellee against the appellants Way in their favor. But costs incurred on this appeal by reason of the appellants Way attempting to appeal from the judgment in favor of the Bevers against the-Wahpoo Oil Company, to which suit appellants Way were not parties, and for which reason we took no cognizance of the judgment on this appeal, were and are here taxed against appellants Way.
With the above explanation of our opinion and judgment rendered herein, appellee’s motion for a rehearing will be overruled in all things.
Motion overruled.