Bouey

This action was tried upon the amended complaint of respondent which contained three counts. In the first count thereof respondent seeks rescission of a contract entered into between himself and defendants Porterfield and Deyot upon the ground of fraud and fraudulent representations. In the second count he seeks judgment against defendants for money had and received, and in the third count he seeks to set aside the contract and for return of money advanced by him thereon upon the ground of fraud practiced upon him by said Porterfield and Deyot, and for failure of consideration.

The action was dismissed as to The Porterfield Company and judgment was rendered in favor of respondent against Porterfield and Deyot. Porterfield alone appeals. The facts of the case are as follows:

That by reason of these representations respondent was induced to pay over to said Deyot and Porterfield $3,850 and that immediately after these representations were made and on January 18, 1924, Porterfield and Deyot, as parties of the first part, and respondent, as party of the second part, entered into a contract to the effect that said parties would incorporate The Porterfield Company with a capital of…