— Action on contract. The case is this: The city of Kirksville let to plaintiff Eeed a contract to grade and pave Normal avenue between certain designated intersections. Under the statute governing cities of the third class, of which the city of Kirksville .is one, improvements of the kind jnst referred to, when properly ordered by such cities, are chargeable to the property abutting on the part of the street improved.
It appears from the evidence that the defendant was the owner of two lots in said city abutting on that part of the street to be improved; that after the letting of the said contract to plaintiff Eeed there was one or two extensions of the time of its performance granted to him by said city. It further appears that plaintiff Eeed, who, it may be inferred, was in rather straightened circumstances, went to the defendant and told him that he could not perform his said street-improvement contract unless he could be paid for it, and that thereupon the defendant agreed that if he would proceed with the said contract he would pay his pro rata share of the cost of the work. It still further appears that during the progres; of the work the defendant promised and assured plaintiff.that as soon as he could make certain collections he would pay for the work; that while the work was.in progress the defendant directed plaintiffs to perform certain parts of it in a way most beneficial to him and not interfering with the general plan of the work as required by the ordinance. The case was submitted to the jury by the instructions of both parties on the contract theory.
*364The contract of tbe city with plaintiff Reed for making the improvement was introduced in evidence over the defendant’s objections, but these'objections if primarily valid were subsequently in effect waived by defendant. The defendant by his first instruction asked the court to tell the jury that the contract which was duly — properly—admitted in evidence was only admissible so far as it might show the contract between the plaintiffs and defendant. It was probably admissible anyway as a part of plaintiffs’ ease, but if not, the objection thereto — whatever it was — was waived by the defendant’s said instruction. He could not, after securing such an instruction from the'court telling the jury that the contract was properly admissible for one purpose, be heard to complain, as he did in his motion for a new trial, that it was inadmissible for any purpose.
We can not say that there was no evidence of a contract between plaintiffs and defendant for doing the work, and for that reason we can not find fault with the action of the court in denying the defendant’s demurrers to the evidence.
The judgment will be affirmed.
All concur.