Burns

The action was instituted to rescind certain contracts and to recover moneys paid on the purchase price.

The case presents one or two novel features, arising perhaps from the fact that almost the entire theory of the case suddenly changed between the time of the commencement of the trial and its conclusion. The suit in its com mencement was predicated upon the alleged fraud. The third amended complaint was in four counts: The first count alleging and detailing the fraud complained of; the second count set up a lack of mutuality and consequent failure of consideration; the third count was for money had and received and the last count was on an account stated.

Here we may stop to note appellant’s contention that the trial court erred in overruling the demurrer to the complaint. There are no special points of pleading involved, a consideration of which would necessitate analysis of the contention. As conceded by appellant, recovery was had on the first and third causes of action; therefore the sufficiency of the two remaining counts would become a matter purely academic. Without further detailing each separate allegation in the counts remaining we are content to hold that the…