Opinion by

This is the second time this case has been here this term-. The facts are fully stated in the report of the case and the opinion in Dougherty v. Briggs, 231 Pa. 68. The trial of the cause resulted in a verdict for the plaintiff. Subsequently, the court entered judgment for the defendants non obstante veredicto and the plaintiff appealed to this court. We reversed the judgment, holding that whether Dougherty waived his right to the collateral security for the deferred payments was a question of fact on all the evidence submitted, and directed the court below to enter judgment on the verdict. The judgment having been entered, the defendants have taken this appeal, and contend that there was no evidence to support the contract of waiver, that the charge was inadequate, and that improper and incompetent evidence was submitted to the jury.

The single question for determination by the jury was whether the plaintiff in his subsequent contract with the trust company had waived his “equities” in the five houses reserved under the contract with Bihlmaier to secure the deferred payments of $2,600. It appeared in the evidence, and was not denied, that in the contract *208between Dougherty and Bihlmaier the “equities” in the five houses were set aside as collateral for the deferred payments, that the Tradesmen’s Trust Company took title to the properties with notice of and assented to the terms of the contract, that the deferred payments were not made to Dougherty by Bihlmaier, and that the five properties were sold by the defendants and they received the proceeds which were sufficiently in excess of the prior mortgage to pay Dougherty’s claim. These facts were not disputed, but the defendants claim that Dougherty waived or released his “equities” in the five properties in consideration of the defendants paying him $2,900 to finish the work after Bihlmaier’s default. It is manifest that the burden was upon the defendants to show the release or waiver. This they attempted to do by the letters which passed between the parties and which appear at length in the former report of the case. The defendants introduced no parol testimony in support of their position. We held in the former case that the contract between Dougherty and the trust company was partly in parol and partly in writing and was, therefore, a question for the jury, and that the evidence was sufficient to submit to the jury. In the opinion it is said: “The parol testimony was ample to justify the jury in finding, as they did, that Dougherty did not waive or intend to waive his claim or lien on the five houses, and that the contract, as disclosed by the letters and the parol testimony, was simply that Dougherty should complete the plumbing work for $2,900 to be paid to him by the trust company as the work progressed.”

The contention that the charge was inadequate cannot be sustained. The trial court submitted the case to the jury on all the testimony, written and parol, to determine whether the plaintiff had waived his rights or “equities” in the five properties.' The learned counsel for the appellants excepted to the charge because the court had permitted the jury to determine the contract and did not construe the letters as a waiver of the plaintiff’s “equities” *209and peremptorily charge the jury to find for the defendants. There was no allegation prior to the present appeal that the charge was inadequate or insufficient. If the appellants desired any specific or fuller instructions on any question involved in the case, they should have made the request by submitting points to the court.

The testimony of Mr. Wood was not opinion evidence. The language used by the learned judge in the first question put to the witness was unfortunate and might lead to the conclusion, as maintained by the appellants, that he was asking simply the opinion of the witness upon facts not in evidence. A careful reading of the testimony quoted in the fifth assignment, however, will show that the court was eliciting facts which had a direct bearing upon the question at issue in the case.

The case having been fully considered on the former appeal, we think any further discussion is unnecessary.'

The judgment is affirmed.