delivered the opinion of the court.
Thе petition alleges that plaintiff is an architect, and that at the request of defendant he prepared designs and specifications for ten houses, the reasonable value of which services was $350. The answer is a general denial. On the trial, plaintiff introduced evidenсe tending to prove the allegations of the petition, and defendant introduced evidеnce tending to show that the agreement between plaintiff and defendant was, that the plаintiff was to be paid a percentage on the cost of erecting the houses, if they wеre built; that it was understood at the time that the houses might not be' built; that in case the houses were not built, defendant was to pay nothing for the plans and specifications ; and that owing to cirсumstances detailed in the evidence, defendant abandoned his design of building, and the houses wеre not put up. Defendant asked an instruction to the effect that if the jury believed from the evidence that plaintiff agreed with defendant that he would make the plans and specifiсations, and require no compensation therefor unless the houses were built, and that the hоuses were.never built, then they should find for defendant. This instruction was refused. There was a verdict and judgment for plaintiff.
Respondent contends that the evideuce as to the agreement that there should be no charge if the houses were not built should have been specially pleaded; and that it was not competent under the general denial. The defence set up, hоwever, is not the determination by subsequent occurrences of a once subsisting cause of action ; but it is denied that any cause of action ever came into being under the terms оf the agreement as set forth by their evidence. The defence was not new matter, and need not be specially pleaded, but was properly introduced, we think, under a generаl denial. The allegation of the petition is that defendant made a certain contract; defendant does not admit this. He denies it, and endeavors to make good his denial by showing that the contract made was different in terms
But were the rule of pleading otherwise, the evidence of defendant was admitted on the trial without objection, as if competent under a general denial, or as if specially pleaded. This being so, an instruction based upon the issue made upоn the trial by the conduct of the parties should not have been refused. The case had in fаct been tried as if the contest was whether or no, under the agreement, plaintiff was or wаs not to be paid, irrespective of the fact that the houses never were put up; and the instruction should have been given, under the circumstances, even if the trial court held the dеfence not to have been sufficiently pleaded, since there was no question of surрrise. If plaintiff desired to save the point he should have objected to the evidencе, and defendant, if his plea was defective, might have been allowed to amend in terms. The question of pleading was clearly waived by this failure to object to the evidence, and defendant had a right to have the case put to the jury on the theory on which, by consent of plaintiff, it had been tried ; that is, on the theory that the defence was not new matter, and was sufficiently set up by a general denial.
If the trial court, against objection, improperly admitted evidence of a special defence not pleaded, or if defendant had insisted uрon the introduction of such evidence against plaintiff’s objection, without, asking leave tо amend his answer, a different case would be presented. As we have
For the refusal of the instruction set out above, as asked, the judgment must be reversed and the cause remanded.