
    Meeks v. American Law Book Company.
   Hill, J.

Where a plaintiff brought suit against a defendant for the recovery of a money verdict for breach of a contract (note), and pending suit the defendant paid the amount sued for, principal, interest, and costs, but by request of the defendant the case was neither marked settled on the docket nor dismissed by order of the court; and where, about twelve months subsequently, the defendant filed an amended answer to the original suit, in the nature of a cross-petition, praying for cancellation of the original contract for an alleged breach thereof by the plaintiff, and for the recovery of the amount paid by him to the plaintiff in settlement of the suit; and where no demurrer was filed to the answer, and both parties went to trial and submitted evidence on the issue raised by the amended answer, which evidence did ■ not show a breach of the contract by the plaintiff, but on the contrary showed that the plaintiff tendered in open court all published volumes of the books for which the notes sued on were given, which tender the defendant refused, it was not error to direct a verdict for the plaintiff.

No. 4175.

November 13, 1924.

Complaint. Before Judge Eve. Irwin superior court. November 17, 1923.

Mdridge Quits, for plaintiff in error.

A. J. & J. G. McDonald, contra.

Judgment affirmed.

All the Justices coneur, except Russell, O. J., dissenting.

Hines, J., concurs in the result.  