The amount involved being less than $100, certain questions have been certified upon which it is said to be desirable to have the opinion of the Supreme Court.
The first and second questions are as follows: “Does the evidence legally establish “an express contract of payment,” and “does the evidence legally establish a release of the defendant from payment.” Neither of these questions presents for determination a question of law, and it is only such a *759question that can be certified for the opinion of the court when the amount involved is less than $100. Code, § 3173.
The remaining question certified is as follows: “Was the instructions of the court to the jury authorized for the purpose of ascertaining an express contract, which instructions are as follows: “And the mutual understanding of the parties may be found by you, from the treatment of the transaction by the parties at the time of it and afterwards.”
Whether this instruction is correct depends upon the evidence, and we have great difficulty in ascertaining what is the precise question we are ashed to determine. As we understand, the argument of counsel for the appellant is mainly directed to the point that the evidence does not establish an express contract, and, to sustain the defense, it was essential such a contract should be established. But no such questions are submitted to us.
Affirmed.