Gallwey

This is an appeal from the judgment in favor of plaintiff and from the order denying the defendant’s motion for a new trial.

The complaint contained three counts, the first being upon a promissory note for three hundred dollars executed by defendant on the twenty-seventh day of April, 1914, to Eberhardt Estate Company and by it indorsed to J. W. Wright & Company and by the latter indorsed to plaintiff. The second count is to recover a balance of $213.95 alleged to be due upon a mutual, open, and current account for moneys advanced and loaned to the defendant. The third count is on a written contract in which it was agreed that all rent, taxes, interest, etc., on the respective properties to be exchanged were to be adjusted pro rata as of the date of exchanging of deeds. The third count then alleged that the exchange of properties was consummated on April 28, 1913, and that at the special instance and request of defendant and pursuant to the said written agreement defendant became indebted to said Shatter Realty Company in the sum of $287.08 as a balance due upon a mutual, open, and current account. Then the assignment of the indebtedness to plaintiff is pleaded.

In answer to the…