The appellant, plaintiff in the trial court, sued to recover of the defendant an amount of money, stated in the complaint. The complaint is in form upon the common count, the first, for work and labor done; second, for money paid at the request of the defendant; third, for money received by defendant for plaintiff, and fourth, for goods, wares and merchandise sold. The case Avas tried upon issue raised upon plea of the general issue, of payment, and upon plaintiffs’ repli*63cation to special plea numbered three, and upon special plea numbered four. After the close of the evidence, the court gave the affirmative charge in favor of the defendant. This is assigned as error.
We incline to the view, that the court overlooked the issues made by the pleadings and upon which the case was tried. The first plea of the defendant simply traversed the averments of the complaint. There is no controversy that the plaintiffs performed work and labor for the defendant, as averred in the complaint, to say nothing of other of the common counts. The second plea was that of payment. The defendant offered no evidence in support of this plea. True, there is some testimony in the evidence of the plaintiffs of payments made, but not such as to authorize the géneral charge as to the plea of payment. The third plea of the defendant is a special plea, in which it is averred that the matters of litigation arose from a special contract between the city and the plaintiffs, which contract provided that if plaintiffs failed to complete the work by a named day, the plaintiffs were to forfeit ten dollars per day thereafter. The plea then avers a failure to complete the work within the time stipulated, and claimed as a set-off the penalty. Leaving out of view the first replication to this plea, the fourth replication was “that the delay complained of was the result of defendant’s failure to comply with a stipulation on its part in this: that the defendant failed to locate the said arc light, as by the terms of said contract it was required to do.” Issue was joined upon this replication. There was some evidence tending to support this replication, upon which issue was joined. We are not prepared to say that there Avas no evidence tending to support the count for money had and received. Some questions are argued in brief of counsel for appellee as to the liability of the defendant, but which are not raised by the pleadings. We will not anticipate the action of the court on another trial, and upon different issues. It is well settled that parties to a written contract may modify its proAdsions by a subsequent parol agreement. There Avas no evidence offered in support of defendant’s fourth plea.
Reversed and remanded.