
    M. Grau & Sons, Plaintiff and Appellee, v. Enrique Figueroa Garrastazu, Defendant and Appellant.
    No. 6687.
    Argued November 13, 1935.
    Decided January 17, 1936.
    
      Miguel A. García Méndez for appellant. Oscar Souffront for ap-pellee.
   Me. Justice Hutchison

delivered the opinion of the court.

Defendant appeals from a money judgment. He says that the district court erred in admitting evidence of defendant’s conformity with an alleged balance due on current account. The evidence was in support of an express averment as tó such conformity. There was no reasonable ground for surprise and no satisfactory showing as "to surprise on the part of defendant. Defendant demurred for want of facts sufficient to constitute a cause of action but raised no question as to the form of the complaint. In the absence of ally such objection, the complaint, however vulnerable, sufficiently shadowed forth plaintiff’s theory of a stated account /cuenta liquidada) as well as a current account. Hence, we find no reversible error in the admission of evidence as to defendant’s conformity with the balance due.

The second assignment of error is that the district, court erred in rendering judgment for plaintiff notwithstanding the fact disclosed by the evidence for plaintiff as well as the evidence for defendant that the debt had been paid. There was a conflict in the evidence as to the alleged payment and the district judge decided the question adversely to defendant. The record furnishes no satisfactory reason for disturbing’ the finding of the district court on this point. The same may be said of the question of prescription which resolves itself into a question of fact and was likewise decided adversely to defendant by the court.

We find no abuse of discretion in the award of costs.

The judgment appealed from must be affirmed.  