Price

The complaint alleges that the “defendant is indebted to the plaintiff in the sum of two thousand five hundred and fifty dollars . . . for so much money had and received by said defendant to and for plaintiff’s use,” and that the plaintiff had demanded payment thereof, but that the defendant refused to make such payment. The answer denies the allegations of the complaint. The trial court instructed the jury to return a verdict in favor of the defend ant and, upon the verdict so returned, judgment was entered in favor of defendant for his costs of suit. Plaintiff has appealed from the judgment.

In September, 1921, the parties entered into an agreement, by the terms of which the defendant, as party of the first part, agreed to sell an apartment house to the plaintiff for $180,000, payment of $50,000 to be made January 2', 1922, and $130,000 a year later, interest at the rate of six per cent per annum to be paid on the $130,000 from October 1, 1921. The agreement contained the following paragraph:

Plaintiff sought to recover on the theory that the provision in the agreement that “$2,550 shall be the consideration paid by the party of the second part to the party of the first part…