Campbell

In this action the plaintiff’s complaint contains two counts, the first for money had and received by the defendant in the sum of $716, and the second alleging a written promise- and agreement by defendant to pay the plaintiff the sum of $716. The answer, in addition to denying the material allegations of the complaint, asks affirmative relief by way of two counterclaims, one for $125 and the other for $253.95. It also alleges the existence of a partnership between the parties, and asks for an accounting by the plaintiff. Judgment was given for the full sum demanded, $716. The trial court made but one finding, which was:

The court, probably inadvertently, failed to make any finding upon the issues presented in the defendant’s answer, but since an examination of the reporter’s transcript shows that evidence was produced by the defendant tending to support his counterclaims, the failure to find thereon was erroneous, and prejudicially so.

The instrument executed on November 1, 1921, by the defendant and by which the court finds that the defendant promised to pay the plaintiff the sum of $716, reads as follows:

This writing, on its face, is a mere receipt. However, since the words…