It is contended for the plaintiff that there was no issue to try, and that the plaintiff is entitled to judgment on the pleadings. The ground of this claim is, that the amendments to the answer constitute in fact an amended answer, and that the original answer is out of the case. This is not our view of the matter. It is perfectly obvious that the defendant did not intend'to supersede his original answer by filing amendments- thereto, but merely to narrow the issue, as the plaintiff had already done by dropping from his original complaint every claim except for the threshing. The amendments of defendant struck from his answer the general denial, and, by admitting the truth of the amended complaint, he admitted that he had no valid claim against the plaintiff for unskillful work. Construing the pleadings in accordance with the manifest intention of the pleaders, we think the claim of the plaintiff for $20 stands admitted, and the claim of the defendant for $10 — money had and received for his use by the plaintiff,— and the plea of a tender of $10, remain in the case, and are the only issues in it. The burden was upon the defendant to establish these issues; and hence the court on the *134trial properly awarded the opening and close of tire case to him.
The plaintiff admitted the tender of $10 before suit brought, and the defendant proved the due payment of the money into court for the use of the plaintiff. That disposed of the plea of a tender in favor of the defendant, and left only for trial the issue on the counterclaim for $10 had and received.
The evidence was somewhat in conflict on this issue, but it tended to prove that the threshing machine wasted grain; that Susan, of whom ,the plaintiff purchased it (or his agent for him), agreed that if defendant would allow the threshing to proceed he would pay the damages, the plaintiff at the same time agreeing to become security for such payment, and that thereupon the defendant allowed the plaintiff to go on with the work; and that Susan and the defendant liquidated the damages at $10, and subsequently, when the plaintiff settled with Susan for the machine, that sum was allowed him by Susan for the defendant, and the same was deducted from the contract price of the machine. The court instructed the jury, in substance, that if they found the foregoing facts established by the evidence, the defendant was entitled to their verdict. The charge of the court may be open to some technical criticism, but, as a whole, it submitted the case fairly to the jury, and we do not think the jury could have been misled by it. The same remark is applicable to the rulings of the court on objections to testimony- The case seems to have been fully and fairly tried, and the evidence abundantly sustains the verdict. We have no doubt that substantial justice has been done, and we decline to disturb the judgment on any mere technicality.
By the Court.— Judgment affirmed.