Pleading—-Indebitatus Assumpsit—Money had and Received—“Use of Plaintiff” not Averred—Express Promise.—In pleading a count of a complaint in indebitatus assumpsit for money had and received, the omission to aver that the money was received “to the - use of the plaintiff” would be fatal were it not that the count alleges a direct promise of the defendant appealing to repay the money, which had the effect to make the count sufficient to state a cause of action.

Id.—Different Counts Based on Same Transaction—Election not Required.—Where all of the different counts of the complaint were based upon the same transaction, and had reference to the same identical sum of money, the court did not err in refusing to compel the plaintiff to elect between the counts.

Id.—First Count Based on Fraud—Representative Agency in Obtaining Money—Promise of Appellant—Cause of Action.— Where the first count of the complaint was based on fraud between defendant corporations in obtaining money from plaintiff without consideration, under a contract with the investment company, used as representative agent of the realty company, under fraudulent representations, all of the money having been received by the realty company, which promised to pay the same, and did pay part but refused to pay the residue, such count states a cause of action against the realty company to compel payment of the residue.

Id.—Inconsistent Findings—Reversal.—A general finding that the allegations made in the first count of the complaint were not sustained is inconsistent with findings in favor of the second count of indebitatus assumpsit based upon the same express agreement stated in the first count, which is found to be untrue, and such inconsistency is ground for reversal of a judgment based on the second count.

Id.—Support of Finding Under Second Count—Presumptive Nature of Express Agreement—-Direct Inconsistency.—The support of the finding under the second count of the complaint as to the express agreement, which must be presumed to be based upon sufficient evidence where there is any evidence in the record tending to sustain it, and there appearing to be but one agreement shown in the record, must rest upon the theory that the court determined under the evidence that the money was obtained either fraudulently and through misrepresentation, or by means of some agency or representative of appellant. But this finding so supported is directly and absolutely inconsistent with the finding that no express agreement was made under the first cause of action, which related to the same facts and circumstances surrounding the transaction.