
    15532.
    Stone v. Johnson.
    Decided February 14, 1925.
    Complaint; from city court of Baxley—Judge Speer. March 8, 1924. , - 1
    
      V. E. Padgett, for plaintiff.
    
      Wade II. Watson, for defendant.
   Stephens, J.

1. Where, in a suit to recover upon an alleged indebtedness for services performed under a contract, the only material issue is as to the amount contracted to be paid and therefore due under the contract, the plaintiff is entitled to recover whatever is due under the contract as established by the evidence, whether the contract as so established as to the amount due is in accordance with his contention or in accordance with the contention of the defendant.

2. It appearing by an admission in the plea of the defendant that, under his theory of the contract, he is indebted to the plaintiff in a certain sum, a verdict finding generally for the defendant is without evidence to support it.

3. A1 tender of money, although properly made, does not relieve the person tendering it from the obligation to make payment.

4. A plea by a defendant which alleges that he has paid the plaintiff all that he owes under the contract except a named amount, “which amount defendant tendered plaintiff before this suit was filed and still makes a continuing tender of . . to said plaintiff,” is a plea admitting an indebtedness to the plaintiff in such amount.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.  