Beck

Action by plaintiff as the assignee of Franklin ■& Drain, constituting a copartnership, to recover upon qiiantum meruit for labor done and materials furnished at defendant’s instance and request in grading and improving a certain tract of land owned by defendant. Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant prosecutes this appeal.

It is alleged in the complaint that the reasonable value of the work done and materials furnished was the sum of $51,-095.74, upon which defendant paid $31,954.30 and no more, leaving a balance unpaid of $19,141.44, for which plaintiff • asks judgment.

In defense of the cause of action defendant by his answer avers that the work was done and the materials furnished pursuant to a written contract made between defendant and - said copartnership of Franklin & Drain, by the terms and provisions of which it was agreed that said work was to -be performed as a whole, but at prices therein stipulated for each class of work, and the whole completed by December 15, 1906. Defendant further avers that neither the contract price nor the reasonable value of the labor done and materials furnished is in- excess of…