Duncan

Plaintiff, the appellant here, brought this action, alleging the defendant to be indebted to it for steel, iron work, and materials, for which defendant agreed to pay the sum of $2,296.15, with interest. As a separate cause of action it pleaded an account stated for the same amount. Defendant, by his answer, admitted that plaintiff sold the goods, wares, and merchandise, alleging that they were sold, not to defendant, but to defendant and one C. L. Powell, who were, at the time of such sales, doing business as partners together in the building and completing of sewer contracts, and that all of the materials were used by the partnership in said work, and for their joint benefit, all of which was well known to the plaintiff at the time, and, further, that the entire claim of plaintiff with interest and costs was paid on or about the eighteenth day of February, 1916, which date was long after the suit brought, by receiving property of defendant more than sufficient to pay the same.

By way of cross-complaint, the gist of which is here given, defendant further alleged that, coincident with the commencement of this action, plaintiff, in order to secure the claim sued upon here, caused…