
    COFFMAN & SHERWOOD v. BROWN.
    
      (In the Supreme Court of Colorado,
    
      December Term, 1883
    
    
      Appeal from the District Court of San Juan.)
    
    Admission in Answer—Verdict for Less. Though the evidence may convince the jury that the plaintiff is entitled to a less sum, yet when the answer admits an amount due to plaintiff, he is entitled to recover that sum.
   Per curiam.

There is some conflict in the evidence as to the exact date when the partnership of appellants was formed. But the cause was tried to a jury, and we will not disturb their findings upon this question, which was submitted to and considered by them.

The answer avers a tender of $81.40, and admits an indebtedness to plaintiffs of that amount. Yet the jury return a verdict for only $20.40, and the Court rendered judgment therefor. No question is made as to the sufficiency of the tender, and we think, under the verdict, plaintiffs ought not to recover their costs.

Although the evidence may have convinced the jury that plaintiff’s just demand did not exceed the sum named in their verdict, yet defendant was and is bound by the admission in his answer. Plaintiffs were in any event entitled, under the pleadings, to recover $31.40, and the Court should have rendered judgment for that amount.

Hudson & Slaymaker, G. M. Frazier and M. B. Carpenter, for appellants.

Submitted ex parte.

The judgment will be reversed and the cause remanded, with directions to the District Court to render judgment for the sum above named.

The costs of the appeal will be equally divided between the parties; the balance of costs will be against appellants.

Reversed and judgment directed.  