McKesson

This action was brought to recover the sum of $467.46 for goods sold and delivered, with interest thereon from October 21, 1921. The complaint was filed November 25, 1921. The answer denied the indebtedness and set up a counterclaim in the sum of $164.09. The ease went to trial and plaintiff recovered judgment on June- 23, 1922, for the sum of $474.66, with interest from the sixteenth day of July, 1921, amounting to the sum of $7.20.

Upon both principal and interest, it will be noticed, the judgment is in excess of the amount prayed for.

Findings were waived.

The evidence upon the trial—which is before us—shows without conflict that defendant was entitled to a credit in the sum of $44.09 under one of the items of his counterclaim. Defendant sought to have the matter corrected upon motion for a new trial. His motion was denied. He is here asking for a modification of the judgment. There is no contention with reference to this state of the record. At the hearing of the motion for a new trial plaintiff contended, and does here, that inasmuch as findings were waived the defendant is in no position to take advantage of the situation and is without remedy.

The judgment, in so far as…