Ruperd

The opinion of the district court of appeal may possibly be taken as holding that a judgment for plaintiff may be sustained upon findings adverse to the defendant upon affirmative allegations of the answer, although the cause of action to which such allegations and findings are responsive is not one set up in the complaint. If this is the construction to be put on the opinion, we are not willing to concur without further consideration. But, in fact, this question is not involved. The complaint as amended is in reality one for money *Page 100 had and received. The answer admitted the receipt of the money and set up affirmative matters in defense, and to these last-mentioned matters the findings are responsive. The judgment upon these findings is, therefore, a judgment upon a cause of action set forth in the complaint and not upon one which appears for the first time in the answer. A hearing in this court is, therefore, denied. Olney, J., Shaw, J., Melvin, J., Lawlor, J., Wilbur, J., and Lennon, J., concurred. Angellotti, C. J., concurred in the order denying a hearing in the supreme court.

The defendant Joseph C. Hunter appeals from the judgment. The complaint is in three counts, but for the purpose of considering the contentions made by appellant it will be sufficient to refer to the first cause of action, together with the answer thereto and the findings of the court. The complaint alleges that on or about August 10, 1912, the defendants, in consideration of the sum of two thousand dollars received by them and in evidence of said indebtedness, executed their thirty-day note to the plaintiff for the sum of two thousand dollars; that after crediting payments made, there remained due and unpaid the sum of $1,907.42. The answer of appellant denied the execution of the note, but admitted that on August 10, 1912, he received from plaintiff the sum of two thousand dollars. The answer then alleged as follows: "Alleges that for more than seven years last past, defendant Joseph C. Hunter has acted as business agent and advisor for this plaintiff, and that during all of said seven years defendant Joseph C. Hunter has attended to the investing and loaning of plaintiff's money. That said sum of two thousand dollars was received by defendant Joseph C. Hunter from this *Page 97…