dissenting. — In my opinion, the instructions given by the court below must be. regarded as the law of the case; and, as no exceptions were taken to them, they cannot be questioned or assailed in this court, and, indeed, that is not attempted. The services of plaintiff, and the value thereof, are to be regarded as admitted by defendant. The district court submitted no other issue to the jury than the one involving the settlement pleaded by defendant, and, in effect directed the jury that, if they found for plaintiff upon that issue the plaintiff is entitled to recover the amount of his claim. No issue was submitted to the jury involving the amount which plaintiff should recover. That was settled by the admissions of the pleadings, as held by the instructions of the district court, and therefore required determination by neither court nor jury. That part of the verdict finding the amount of recovery is mere surplusage, for there was nothing in the case, under the instructions of the court, requiring or permitting it. The court, therefore, properly disregarded it, and correctly entered judgment for the amount due plaintiff, as shown by the admissions of the pleadings.
In my opinion, the judgment of the district court ought to be affirmed.