(after stating the facts).— There are no points of law arising on this record requiring any very serious consideration. It is strenuously and ably argued by the very learned counsel for the defendant, that the first instruction given at the instance of the plaintiff was erroneous in that it told the jury that if they found from the evidence in the case that plaintiffs rendered the services sued for at the request of defendant, “the law presumes such service so requested by defendant is to be paid for and the law implies a promise on the part of the defendant to pay for the same.” If this instruction had stopped at that, it might be subject to the objection made to it, but it is followed with the further statement that the jury should so find, unless the jury found that the plaintiffs agreed not to charge for the service, and if they found that as a fact then they should find for the plaintiffs for each item of service so rendered for the fair and reasonable value thereof as shown by the evidence, unless the jury further believed from the evidence that the items were included in the final settle*633ment. This is a correct statement of the law and could not possibly have misled the jury, particularly so in connection with the instructions given at the instance of defendant himself, which unmistakably left it to the jury to determine whether or not the services rendered were to be paid for or whether they were rendered on an agreement not to charge for them. Defendant’s own instructions placed the case before the jury in a very fair and full manner and with unusual particularity. On examination of the whole record in the case we can say that it rarely happens that a case involving so comparatively small an amount has- been so carefully and well tried and briefed on each side. Considering the instructions as a whole the issues were fairly, fully and clearly presented to the jury. There was evidence sustaining the theories of the respective parties. The weight to be given to the testimony and the right to draw proper conclusions therefrom were for the jury, who as to those were the sole judges and their finding, confirmed by the learned trial judge, is conclusive on us.

It is complained in the brief of the very able counsel for the defendant that the suit was prematurely brought; that the testimony showed that the adjustment of whatever remained over from the rent of 1906 was to be taken up in 1907 and settled for at the end of the term of the lease for 1907. It is sufficient to say of this, that if a defense relied upon, it is one which should have been pleaded. It was not pleaded by the answer or otherwise and cannot now be noticed.

The point made that it was error to fail to require plaintiffs to elect is not well taken, even if we grant that proper exception was made to the action of the court in overruling the motion. The action of appellant in. answering over and going to trial upon the merits of the case amounted to an abandonment of that motion. This has so often been decided by our Supreme and appellate courts that it seems hardly necessary to notice it. See for last decisions of Supreme Court, Hof *634v. St. Louis Transit Co., 213 Mo. 445, l. c. 466, 111 S. W. 1166; of this court, and Barrie v. United Railways Co., 138 Mo. App. 557, 119 S. W. 1020.

The judgment of the circuit court is affirmed.