Jensen

This action was brought by the plaintiff as the vendee under a contract for the sale of real property to recover from the defendant, Corning Farms Company, a corporation, the amount paid by the plaintiff to said defendant under the terms of said contract after the same had been terminated by the vendor for the alleged failure of the vendee to make certain installment payments due upon the purchase price of said property, according to the terms of said contract.

The amended complaint was in two counts, the first of which set forth the contract in haec verba and alleged the making of the payments thereunder for the recovery of which the suit was brought, and further alleging a mutual cancellation, termination, and rescission of said contract. The second count was in the form of the common counts for money had and received by the defendants to and for the plaintiff’s use. The defendants in their answer admitted the making of the contract and the payment of the sums alleged to have been paid by the plaintiff thereunder; but they denied that said contract was canceled, terminated, 'or rescinded by mutual consent, and in that respect affirmatively averred that the plaintiff, after…