#### C. A. PORTER v. JACKSON GOLD MINING COMPANY and L. BARNETTE NEWBY.

(Filed 26 November, 1930.)

Appeal by plaintiff from Moore, J., at March Term, 1930, of Uhiok.

Admissions in answer sufficient to overcome defendant’s motion, of nonsuit in this case.

Vann & Millihen for plaintiff.

IT. B. Adams for defendants.

Pek CuRiam.

The plaintiff brought suit against the defendants for the sum of $3,900 for services alleged to have been performed under a contract made in the month of October, 1927. The defendants denied liability, Newby alleging that he had paid the plaintiff the entire amount he had agreed to pay and set up a counterclaim against the plaintiff for $640.87. When the plaintiff had introduced his evidence and rested the defendants moved for judgment of nonsuit and the motion was allowed. The plaintiff excepted and appealed.

We affirm the judgment of nonsuit as to the Jackson Gold Mining Company, but in view of the admission in Newby’s answer in reference to his agreement with the plaintiff and the plaintiff’s testimony in respect to it we are of opinion that as to Newby the judgment of non-suit should be set aside.

Judgment affirmed as to Jackson G-old Mining Company and reversed as to Newby.