Robson

This is an appeal from a judgment in favor of the defendant Hoyt after an order by the trial court sustaining said defendant’s demurrer to the plaintiff’s third amended complaint.

Said complaint is in two counts, in the first of which the facts upon which the plaintiff relies for a recovery are set forth in detail. The second count is an ordinary common count for moneys paid out and expended within two years for said defendant’s use and benefit and at his special instance and request. Both of these counts, however, admittedly refer to the same transaction.

The facts of the ease, as set forth in the first count of said complaint, and which are taken to be true for the purposes of this appeal, are the following: On December 12, 1905, one Theresa Levin executed a note to the Hibernia Savings and Loan Society secured by a mortgage upon certain premises for the sum of eighty thousand dollars, payable one year after the date thereof. In January, 1906, said Theresa Levin sold and conveyed the mortgaged premises to Kernan Robson, the plaintiff and appellant in this action, subject to said mortgage debt, of which a balance of thirty-three thousand dollars remained due, and which said…