Fredonia Gas Co. v. Bailey

The opinion of the court was delivered by Porter, J.:

This was an action to recover money alleged to' be due for services in drilling certain wells. Plaintiff in error was defendant below. The petition contained two causes of action, one upon a claim for $2652 for drilling three wells on the Muckey farm, and another for $1349 for drilling and cleaning a well on another farm.

The answer set up a general denial and a defense of a settlement, by the terms of which it was averred that defendant had paid a part of the amount agreed upon, leaving a balance of $1000, which defendant admitted was due, and which defendant was ready and willing to pay. Upon the trial plaintiff dismissed the first cause of action, and the trial proceeded upon the second. No amendment or change was made in the answer. Defendant offered proof that the $1000 which was admitted to be due was still on hand and that plaintiff could have it on demand. The jury found for plaintiff in the sum of $1094.60, and in answer to special questions found that no settlement had been made.

*406 By its answer and its evidence plaintiff in error admitted that there was $1000 due plaintiff below. This leaves but $94.60 involved here, the difference between the amount of the judgment and the amount over which there is no controversy, and for that reason the motion to dismiss must be allowed. See the following authorites: Jenness v. Citizens’ National Bank of Rome, 110 U. S. 52 , 3 Sup. Ct. 425, 28 L. Ed. 67 ; 2 Cyc. 576; 2 Cent. Dig., c. 928, § 236.

The case is dismissed.

All the Justices concurring.