
    Stevens v. Andrews.
    Plaintiff sued on a due-bill for money borrowed, and for $5 for work and labor. Defendant admitted owing $3 for labor, claimed that the due-bill was for money on deposit with him, and for counterclaim alleged that plaintiff occupied a certain dwelling-house by his permission, and had never paid for the same, but did not allege any right or interest in the house entitling him to demand rent. Plaintiff waived his claim for more than $3 for labor. Held, that a demurrer to the counter-claim was properly sustained, and that plaintiff was entitled to a judgment on the pleadings.
    
      Appeal from District Court, Ouray County.
    
    This action was commenced by the appellee, Andrews, against the appellant, Stevens, to recover the sum of $155.82, borrowed money, evidenced by a due-bill executed by Stevens, and payable to Andrews on demand, dated September 26, 1881, credited with $51.50, leaving $134.32 due Andrews, as he alleges. For a second cause of action Andrews claims $5 due him for work and labor. Stevens, in his answer, denies owing Andrews any borrowed money; says the due-bill was given for money remaining in his hands on deposit. Admits that he owed the plaintiff for work and labor done in the sum of $3. For a counter-claim against the plaintiff, the defendant alleges that the plaintiff occupied a certain dwelling-house by permission of the defendant from the 2d day of July, 1881, until the 8th of November, 1882. That the use of said premises for said period was reasonably worth $5 a month, or the total sum of $142.50. That the plaintiff has never paid the same, and admits judgment for the sum of $35.18, with interest. The plaintiff demurred to that part of the answer setting up a counterclaim, which demurrer was sustained by the court. The defendant elected to stand by his answer, and the plaintiff having waived his claim for more than $3, the amount admitted to be due him by defendant’s answer for work and labor, thereupon the court rendered judgment for the plaintiff on the pleadings. The defendant, Stevens, appeals to the supreme court.
    Messrs. Enos Miles and Wm. Story, for appellant.
   Elbert, J.

The demurrer to that portion of the answer setting up a counter-claim was properly sustained. The answer did not allege or disclose any right, title or interest in the defendant to the house alleged to have been occupied by the plaintiff, entitling him to demand or recover rent for the same.

The answer of the defendant respecting the due-bill sued upon did not put in issue any material fact respecting it, and the plaintiff having waived his right to recover more than was admitted by the defendant to be due the plaintiff on his claim for work and labor, the court did not err in entering judgment upon the pleadings. The judgment of the court below is affirmed.

Affirmed.  