The substance of plaintiff’s claim is that he advanced money, at defendant’s request, for the purchase and maintenance of a laundry business in the city of Davenport, and,that there is due and unpaid from the defendant the sum of $1,882 and interest. The answer of defendant, in addition to a denial, pleads an alleged accounting between the parties, in which it was found that defendant’s indebtedness to plaintiff upon the transactions in controversy was the sum of $1,772.23, of which sum defendant then and there paid $850, leaving now due plaintiff $992.23, and for this sum, with interest from August 20,1909, judgment was offered on the trial. In support of such defense, defendant exhibits and relies upon a receipt given him by plaintiff, under the date named, for $850, upon which receipt is a memorandum indicating that the unpaid balance of indebtedness was but $992.23. Plaintiff admits giving the receipt, but testifies that a mistake was
1. Pleadings: amendment: discretion. It should here be said that plaintiff’s claim as to the mistake in the receipt was not pleaded until after verdict, when he was permitted to file a reply to the answer, in which he set up the facts substantially as he had . testified to them. Error is assigned upon the allowance of this pleading, but we think it clearly within the court’s discretion to permit the filing, thus making the pleadings conform to the evidence and to the theory of the trial.
2. Judgments: admission: Some question is raised whether plaintiff’s right of action, if any, is not upon a certain written agreement between the parties. The alleged written contract is not pleaded or relied upon in petition or answer, and the answer in effect concedes plaintiff s right of recovery upon the case made in the petition; the sole contest being upon the amount of defendant’s in, debtedness. There was therefore no error in holding plaintiff entitled to a judgment.
3. Direction of verdict : when justifled. The one question fairly presented by the record is whether the court erred in directing a verdict for plaintiff for an , amount in excess of the indebtedness admitted by defendant. The plaintiff testified specifically to the trans- . actions with defendant and to the several items . making up the aggregate of his claims and showing the remainder still unpaid. The defendant, who could have testified to his own version of the facts, had he eared to do so, did not go upon the witness stand, but contented himself
The appellee asks this court to assess a penalty against appellant of 15 per cent, upon the amount of the recovery on the ground that the appeal was taken for delay only. With some hesitation we deny the motion, but it must be said that the manner in which the submission of the appeal has been delayed has been little less than vexatious. The judgment appealed from is — Affirmed.