Bond, J. This suit is upon two promissory notes, one for $317.25, the other for $451.05, each dated August 17,1892, made by defendant payable to plaintiff one year after date, with interest at eight per cent, if not 452 paid within thirty days after maturity. The answer admitted the execution of the notes, but denied that they were unpaid.
It further averred that defendant was in possession of plaintiff’s farm, as tenant, under a lease expiring March 1, 1896; that 'while so holding he entered into a verbal contract with plaintiff to surrender said farm, in consideration of which, 'and the doing of certain work, plaintiff agreed to allow defendant $150. The answer further claimed $500 for work and labor in sowing wheat. It averred payment of money aggregating $762, and pleaded a set-off for $650.
The reply denied the allegations of the answer and pleaded the statute of frauds as to the verbal agreement. On these issues the cause was submitted to the court without the aid of a jury. Defendant gave evidence tending to support the allegations contained in his answer. The court found that the notes in suit had been paid and discharged. It disallowed defendant’s counterclaim for $500, but found in his favor for items of $20 and $60, and gave judgment for defendant for $80.
Plaintiff duly perfected his appeal to this court. Appeal, without instructions given or asked, or exception taken. An examination of the record shows that no instructions were asked or given, and that no exception was taken by plaintiff to the overruling of his motion for new trial. The record shows that defendant excepted to the overruling of said motion, but, as he did not appeal, nothing-is before us for review, but the record proper.
The answer of defendant states a defense to the notes and states a cause of action for the matters counterclaimed. There are no defects in the judgment entry. The result is that the judgment herein will be affirmed. All concur; Judge Biggs in the result.
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