Vogel

Plaintiff sued for money had and received but pleaded facts for a suit for fraud and deceit. The cause was tried without a jury and defendant had judgment. Plaintiff appeals on a typewritten record.

The complaint alleged that in the month of October, 1918, defendant became indebted to plaintiff in the sum of $1733.21 for money had and received for the benefit of plaintiff; that at the time defendant was acting as agent for plaintiff in an exchange of real properties; that said sum was paid defendant by plaintiff upon defendant’s representation to him that said sum was necessary to pay interest installments due under a mortgage against one of the pieces of property, whereas said interest had been fully paid by another party; that plaintiff did not discover the said “fraud and deceit” until the month of March, 1922. The answer denied specifically the material' allegations of the complaint, and, by special plea, set up the bar of the statute of limitations.

The complaint was filed February 13, 1923, and' the cause of action therein pleaded was, of course, barred unless the want of timely discovery of the alleged fraud was excused by competent proof. Upon this issue we do not…