Brown

In this case the plaintiff and appellant sought to recover the sum of $1,215, money had and received by the defendant, following his alleged failure to convey certain real estate. The trial court gave judgment for the defendant, and the appeal is from the judgment and order denying a motion for a new trial.

It is first urged by appellant that the evidence admitted over his objection- was so different in its general scope and meaning from the admissions and allegations of the answer as to amount to a failure of proof within the meaning of section 471 of the Code of Civil Procedure.

The complaint alleges: (1) That on or about the twenty-fourth day of July, 1921, defendant had received from the plaintiff the sum of $550, for which he agreed to convey sixty acres of land, situated in the Antelope Valley, Los Angeles County. (2) That on or about the twenty-second day of December, 1922, the defendant received the sum of $350, for which he agreed to convey to George Brown, the son of plaintiff, ten acres of land in the Antelope Valley. (3) That on or about the eighteenth day of January, 1923, the defendant received a Ford automobile of the value of $300, for which the latter agreed to…