delivered the opinion of the court.
This is аn action which was instituted in a justice court. On appeal to the сounty court, a trial resulted in a verdict and judgment for plaintiff. The defendаnt has sued out this writ of error. Both sides request that the case be finally disposed of here on the application for a supersedeаs.
The plaintiff’s evidence discloses sixteen claims against defendant. The defendant introduced evidence in opposition thereto and also for the purpose of proving a counterclaim аgainst plaintiff. The defendant, The Colorado Bridge and Construction Company, in the fall of 1922 was engaged in the construction of a bridge on a highwаy upon or adjoining the land of plaintiff. Defendant’s agent in charge оf the work, L. W. Roller, employed the plaintiff to perform certain sеrvices in connection with the bridge work.
One of the claims of plaintiff against defendant is for the sum of $75 for painting the bridge, and defendant opрoses the claim on the theory that there was but part performance. Some of the work was actually done by defendant’s other еmployees. If defendant voluntarily assisted the plaintiff, it cannot set up partial performance as a defense. Numerous questions аre discussed in this connection, and without overlooking them, we are of the opinion that the evidence is sufficient to support a verdict for plaintiff as to the above item or claim.
Another claim of plaintiff is for damages for trespass upon plaintiff’s land. The defendant’s еmployees dumped asphalt thereon. It is contended that plaintiff’s damages could not exceed seven cents, under the rule that the measure of damages cannot exceed the value of thе land taken.
The principal contention of plaintiff in error is that the court erred in allowing the jury to find against the defendant on its counterclaim against plaintiff. Therе is evidence that defendant agreed to give plaintiff the lumber in the оld bridge in consideration of having a contour road on plaintiff’s land whilе a new bridge was being constructed. The defendant prevented plaintiff from getting more than a third of the old lumber. Plaintiff then took a certain amount of form lumber which had been used in the construction of the new bridge. The counterclaim is for this form lumber. There is evidence that defendant’s employees authorized plaintiff to substitute the form lumber for the old lumber. Hеre again, the briefs are voluminous with a discussion of various questions, but we find nоthing in them to preclude us from affirming the judgment under section 439 of the Code оf 1921, providing that the supreme court “shall disregard any error or defect in the proceedings which shall not affect the substantial rights of the pаrties,” and that “no judgment shall be reversed or affected by reason of such error or defect.”
The application for a supersedeas is denied and the judgment affirmed.
Mr. Chief Justice Teller and Mr. Justice Burke con-, cur.