
    Weaver v. Carnahan.
    1. Where plaintiff sues to recover the value of services rendered, and defendant admits the rendition of the services, but denies the value to be as great as claimed, and avers that it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial, to determine the further value of such services.
    
      2. Where defendant, in such case, denies the rendition of the services and further alleges that, even if they had been rendered, they would have been worth a specified sum and no more, and the court thereupon, without trial had, erroneously renders judgment against him for such amount, the judgment, if acquiesced in by defendant, is final, and a bar to further proceedings.
    3. Section 376 of the Code, as amended March 13, 1873, (69 O. L. 44), applies only to cases where a part of the emse or causes of action is admitted and part denied. (Moore v. Woodside, 36 Ohio St. 537, distinguished.)
    Error to the District Court of Butler County.
    . Carnahan brought his action in the court of common pleas against Weaver to recover $111.50, with interest, which he claimed to be due him upon an account for medical services, a copy of which account he attached to his petition. The answer of defendant was as follows :—
    
      “ The defendant for answer denies that there is due to the plaintiff on said account $117.50 as alleged in the petition. He admits the items in said account:
    22 April, 1875,........$4 50
    27 April, 1875, . . ...... 4 50
    3 May, 1875,........ 4 50
    2 July, 1875,........ 4 50
    15 July, 1875, . '.......4 50
    1 August, 1875,' . ......4 50
    8 October, 1875, . . . . . . . • 4 50
    13 October, 1875, . . . . . 4 50
    17 October, 1875,....... 4 50
    $40 50
    “ lie says plaintiff expressly agreed to make no charges for medicine and medical aid rendered defendant’s family, besides his wife. He denies that the value of the residue of said services and medicines and prescriptions were worth as much as stated in the petition. He says said entire amount should not be more than ninety dollars.”
    The plaintiff replied denying each and every allegation of the answer.
    Thereupon, on motion of plaintiff the court rendered judgment against defendant for the sum of $90, and continued the cause for further disposition. The amount thus found due, the defendant paid.
    At the following term the court proceeded to hear the case and found that there was still due to the plaintiff upon the account, aforesaid $26.75, for which sum judgment was rendered against defendant. A motion for a new trial was overruled and the cause coming into the district court for review the judgment of the court below was affirmed.
    
      Thomas Millikin, for plaintiff in error.
    
      McKenny & Andrews, for defendant in error.
   Longworth, J.

The answer of defendant, as a pleading, is exceedingly vague and unsatisfactory. Whether by it the defendant offered to confess judgment for the sum of $90, or to deny the rendition of any services, except those expressly admitted, and to allege, by way of alternative, that such services, if they had been rendered, would not have been worth, all told, more that $90, is not as clear as we could desire. The latter construction, however, is the more reasonable. Treated as an admission of the facts stated in the petition, except as to the value of the services rendered, the judgment upon the pleadings would have been final, and the action of the court, in rendering a further judgment in plaintiff’s favor would be too plainly erroneous to admit of discussion.

The court below seems to have treated the case as one of that class to which the provisions of § 376 of the code of proceedure apply. 69 Ohio L. 44. That section provides that defendant having answered “ to a part of the cause or causes of action alleged, the court mjiy, in its discretion, render judgment upon such part or parts as are not put in issue by such <mswerP Under the discretionary power thus conferred the court might, undoubtedly, have rendered judgment in plaintiff’s favor for $40.50 upon the nine items expressly admitted by the answer to have been correctly charged, and then continued the cause for trial upon the issue or issues raised. But this was not done.

As to the remaining items of account the answer either admitted or denied that the services were rendered. If it admitted their rendition the mere denial that they were of the value alleged would be surplusage, and the court might have rendered judgment against defendant as by default, there being no issue of any kind raised by the answer. If, on the other hand, the rendition of services was denied, then it was error to enter up judgment against defendant for $90, without trial, as was done. But of this error the defendant made no complaint; on the contrary, he paid the judgment, and only objected to the court proceeding against him further. Upon either hypothesis the judgment was a finality.

Section 376 of the code applies only to cases where apa/rt of the cause or causes of action is admitted and part denied ; it does not apply where all are admitted or denied.

Moore v. Woodside, 26 Ohio St. 537, in nowise conflicts with this doctrine. True, in that case the jflaintiff had but one cause of action, the suit having been brought to recover the agreed value of goods sold. But the answer alleged that the goods had been sold by sample, and were inferior to the samples in a specified amount, and offered to confess judgment for the agreed price less this amount. Here it is plain that the defendant might have paid the agreed price, and would then have had a right of action against plaintiff for the breach of warranty. Instead of so doing he sought to recoup in the same action; and it was upon the sole ground that the defense was a counterclaim, and not a mere denial of the amount of damages, that the decision in that case was based. The judgments of the district court and court of common pleas will be reversed.

Judgment accordingly.  