Pitzel

Plaintiff brought this action to recover a large sum of money alleged to have been paid to defendant through mistake. The cause of action as alleged rested upon a certain written contract which in the part most material to the alleged right of recovery referred to the purchase by plaintiff from defendant of beer. In this contract it was agreed that beer sold by defendant to plaintiff should be at the prevailing market price, whereas plaintiff alleged that he had paid the sum of eight dollars per barrel for the beer when in fact the market price was seven dollars per barrel, and that he made settlement at the rate of eight dollars per barrel through misapprehension and because of lack of information as to the market price of beer, which he alleged was peculiarly within the knowledge of defendant. He further set up that, after an open account had been running for some time, on the first day of June, 1909, a statement was rendered showing a balance due defendant- of $5,459.05, that settlement thereof was made, and that the whole of the amount of difference between the market price of the beer and the price actually paid was the sum of six thousand two hundred dollars. Defendant made…