
    ERROR.
    [Hamilton (1st) Circuit Court,
    June 29, 1907.]
    Swing, Giffen and Smith, JJ.
    Julia A. Snyder v. August Schardt.
    Ruling on Demurreb Sustained by Subsequent Verdict.
    It is immaterial on review whether or not the court helow erred In oveV' ruling the demurrer to the second cause of action, where a special find, ing hy the jury, supported by the evidence, sustains the verdict returned ‘ for the plaintiff on the first cause of action.
    ERROR to Hamilton common pleas court.
    E. B. Or egg, for plaintiff in error.
    Closs & Luebbert, for defendant in error.
   GIFFEN, J.

.The special finding of the jury, which is sustained by tin- evidence, supports the general verdict in favor of the plaintiff upon the first cause of action, and hence it is immaterial whether the court erred in overruling the demurrer to the second cause of action,

■ If, however, the plaintiff before the request was made by the defendant, had already agreed with the adjoining lot jwner to do and perform the same work for a valuable consideration, the promise of the defendant to pay therefor, whether expressed or implied, would be without consideration.

It would be no detriment to plaintiff to do that which he was before bound to do, nor would it be any benefit to the defendant to receive that which was already assumed. Kansas City, St. J. & C. B. Ry. v. Morley, 45 Mo. App. 304; Putman v. Woodbury, 68 Me. 58.

The contract of plaintiff with the adjacent lot owner required him to shore and brace the building of the defendant, and construct a new Avail under the old wall to the depth of the footings of the new building-, but it did not require him to tear doAvn and rebuild the old wall condemned by the building inspector, although the plaintiff included all expenses incurred in building the wall up from a depth of nine feet below the curb, amounting in all to $450. The jury seems to have carefully distinguished betAA-een that required by his contract with the adjacent lot owner and that required by his contract with defendant, allowing him only $200, Avitliout interest, and we think the judgment should be affirmed.

Swing and Smith, JJ., concur.  