Valentine

(after stating the facts as above).

The defendant, plaintiff in error here, assigns as error the action of the court in admitting evidence tending to show that the contract between plaintiff and defendant provided for a commission of 2J4 per cent, of the cost of one of the buildings remodeled, for plans, in addition to the 10 per cent, of such cost for the services of the plaintiff. It is said that there was no issue raised as to what plaintiff was to be paid, and that the exception to the admission of such evidence was well taken. But in the bill of particulars, which was furnished by plaintiff before answer, there was a specific charge of $666.82 for plans for the Valentine Block, and in the answer the defendant specifically referred to the bill of particulars filed, and denied liability for the items of $539.40, “plan for block, or for any sum whatsoever therefor,” because plaintiff did not furnish such plan and was not entitled to any charge therefor. Upon the trial plaintiff testified that it was distinctly agreed with the defendant, Valentine, that 2y2 per cent, was to be the cost of the plans, which was reasonable and customary for architectural work; that the 10 per cent,…