Bryant

This is an appeal hy defendant from a judgment rendered in favor of plaintiff, and there is brought for review the order of the trial court denying defendant’s motion for a new trial.

The facts will be given hereinafter as the grounds of appeal are considered.

The original complaint was filed on June 5, 1923, alleging that A. J. Bryant, doing business under the name of Bryant Produce Company, shipped certain tomatoes to Webster Wellbanks and W. P. Day, doing business under the firm name of Wellbanks & Co., for which no accounting was had, and alleging further the indebtedness of defendants therefor. On June 14, 1924, plaintiff filed an amended complaint, in which he alleged, in addition to the allegations in the complaint, that the defendant Webster Wellbanks was doing business under the firm name of Wellbanks & Co., and that said name was and is a fictitious name. In this amended complaint plaintiff added a second cause of action, namely, for money had and received. In the amended the caption was changed accordingly, and Webster Wellbanks was also joined as an individual defendant. On January 17, 1925, plaintiff filed a second amended with no change in caption or new parties…