Widemann

Plaintiff’s complaint in 'this action consists of two counts. The first count in effect alleges that plaintiff’s assignor entered into a contract with the defendant for the purchase and sale of certain livestock for the sum of $5,170.46, which was to be paid upon the delivery of the cattle; that $500 thereof was deposited with the defendant as payment in part; that the sum so paid was to be returned to plaintiff’s assignor if defendant failed to deliver the cattle as per the terms and conditions of the contract; that the cattle contracted for were subsequently delivered and accepted as agreed, and that, in addition to the $500 previously paid on account, the full purchase price was paid to the defendant ; that although demand had been made upon the defendant for the said $500, he had failed and refused to return the same.

The second count of plaintiff’s complaint stated a cause of action in the nature of a claim for moneys had and received, based upon the theory that the $500 paid on account was to be returned unless the defendant delivered to plaintiff’s assignor a sufficient number of the cattle contracted for to equal in value, quality and quantity, the sum of $500.

The…