Flinn

Action to recover $1,500 attorney’s fees alleged to have become due from defendant to plaintiff’s assignor. The case was tried with a jury, and a verdict rendered for plaintiff for $1,100. This appeal is from the judgment and order denying defendant’s motion for a new trial.

The appellant relies upon two points for a reversal of the judgment and order. The first is that the court erred in denying the defendant’s motion for a nonsuit as to the second count of the complaint. The complaint contains two counts; the first being for the reasonable value of the attorney’s services, the second being upon an express contract. At the close of plaintiff’s testimony the defendant made the motion for a nonsuit as to the second count, whereupon counsel for plaintiff stated in open court that he did not rely upon the second count, and intended to ask the court to in- ' struct the jury that plaintiff could only recover for the reasonable value of the services rendered. The court, upon said statement, denied the motion. The instructions of the court to the jury were all given upon the theory that the second count was abandoned, as no reference is made to such count in the instructions. The court…