
    Maxwell v. Graves.
    1. Contract: modification of: partial performance: consideration. Where the parties entered into a written contract, and afterwards orally agreed to a modification thereof, and the plaintiff performed his part of the modified contract and the defendant accepted of such performance, the defendant cannot he heard to say that there was no consideration for the modification.
    2. Practice in "Supreme Court: irrelevant matters not considered. Where the appeal was from an order sustaining a motion to strike out part of an “ amended and substituted petition,” the appellate court cannot consider the original petition and an amendment thereto, parts of which are set forth in the argument.
    3. -: question not passed on below. This court will not entertain a question which was not passed upon in the court below.
    
      Appeal from Palo Alto Circuit Court.
    
    Friday, October 20.
    The substance of tbe petition is, that in September, 1880, tbe defendant leased and delivered twenty cows to tbe plaintiff, for three years, by a written contract, by wbicb it was agreed that tbe plaintiff should keep tbe cows and their increase in a certain specified manner, and at tbe end of tbe three years tbe stock and increase was to be ajipraised by disinterested parties, and tbe defendant was to have tbe original value of tbe twenty bead of cows, in cows between tbe ages of three and six years, and each party to have one-balf of tbe remainder; that after tbe written contract was made and tbe cows delivered to plaintiff, tbe contract was modified or changed by a parol agreement, by wbicb tbe defendant promised that, if any of tbe cows previously delivered to plaintiff should not have calves in tbe spring of 1881, the defendant should take them back, and supply tbeir places, under the contract, by delivering to plaintiff an equal number of good cows and calves; -that in tbe spring of 1881, ten of said cows did not have calves, and the parties agreed to make such exchange in May, 1881; that plaintiff took said ten barren cows to Emmetsburg, and delivered them to defendant according to verbal agreement, but defendant refused to make the exchange, and refused to give plaintiff ten cows and ten calves as agreed upon; that in June, 1881, defendant wholly abandoned the written contract with its verbal modifications, and “ took from plaintiff said stock mentioned, and refused to furnish plaintiff other cows instead thereof.” Damages are claimed for the alleged failure upon the part of the defendant to make such exchange.
    The defendant moved to strike from the petition all that part of it relating to the parol contract made subsequently to the written contract, upon the ground that the parol contract was without consideration. . The motion was sustained. The plaintiff elected to stand upon his petition, and he appeals.
    
      John Jenswold, Jr., and T. W. Ha/rrison, for appellant.
    
      Soper & Grawford, for appellee.
   Rothrock, J.

I. It is argued at some length that there was a consideration for the parol modification of the contract at the time it was made, and the petition alleges that this consideration was that expressed in the original written agreement, and the mutual benefits to be derived by each of the parties by the exchange. We do not feel called upon to determine whether this was a consideration for the modification of the contract or not.

It is averred in the petition, and contended in argument, that the plaintiff delivered the ten barren cows to the defendant in pursuance of the parol change in the contract. If they were delivered, they must have been received by the defendant, and, if received, the plaintiff thereby parted with them. He had been at the expense of keeping them through the winter, and taking them to the place of making the exchange. It is very clear that, even if there was no original consideration for tbe parol modification of tbe contract, tbe defendant cannot raise tbat question after tbe plaintiff bas performed bis part of it, and tbe defendant bas accepted sucb performance. Something is said in argument by counsel for appellee about tbe original petition, and an amendment thereto, and parts of these pleadings are set forth in the argument. They cannot be allowed consideration in this appeal, because tbe pleading which was attacked by tbe motion appears to be “ an amended and substituted petition.”

II. Tbe motion also made tbe question tbat tbe petition contained two alleged causes of action, and asked tbat plaintiff be required to separate and divide tbe same. No ruling was made upon this part of tbe motion. We are requested by counsel for appellee to determine that question. As it was not passed upon by tbe court below, we cannot entertain it. We think tbe motion to strike was improperly sustained.

Reversed.  