This action is stated in a petition containing two counts, one upon contract for plans furnished by plaintiff as an architect, and the other upon a quantum meruit. The judgment below was for defendant.
An examination of this case has satisfied us that it was fairly tried and that the points made by plaintiff to sustain the appeal are not well taken. It was conceded that plaintiff performed services for defendant and that he had been paid the sum of $1,500; defendant contending that there was no agreed price and that that sum was all he owed him, and plaintiff contending that the contract price agreed was $3,000, thus leaving, according to plaintiff’s view, a balance of $1,500 still due him. There was evidence in defendant’s behalf tending to show that plaintiff accepted the payment of $1,500 as all that was due him, and the court instructed-that if he did so accept it then the finding should be for *359defendant. We discover no possible objection to this instruction as it'is applied to the facts of the case. Plaintiff cites us to many authorities holding that the acceptance of part of a debt conceded to be owing to the acceptor as in full of the debt is no consideration for the discharge of the whole debt. We can see no application of these authorities to the facts here.
As to the use of the words “preponderance of the evidence” in plaintiff’s third instruction, we are of the opinion they do not amount to reversible error.
No error was committed in admitting evidence as to the money borrowed on the building.
The objection to defendant’s first instruction is hypercritical. The instruction, considering the purpose of instructions of similar nature, is without fault."
Nor have we concluded that anything occurred in the opening statement of defendant’s attorney in the light of the fact that he was immediately admonished by the court to keep within the facts' expected to be proved. Especially has plaintiff no’reason to complain here, since he saved no exception to the action of the court on-his objection to counsel’s statement!
An examination of this case, as before stated, has satisfied us that it was fairly tried, and we will affirm the judgment.
All concur.