Cincotta

This is the second appeal in this controversy. (Cincotta v. Catania, 61 Cal. App. 38 [ 214 Pac. 451 ].) The plaintiff inserted in his complaint two causes of action, (1) a common count for money had and received and (2) a common count for money paid. The defendant appeared and answered. He denied the material allegations set forth in plaintiff’s complaint and then he set forth an oral contract made on the eighteenth day of October, 1920. The provisions of that contract were that the plaintiff agreed to buy and the defendant agreed to sell and deliver to the plaintiff f. o. b. cars, ten tons of black and green cured olives at twelve cents per pound, packed in thirty-gallon barrels, and to be delivered during the month of December, 1920. The defendant further alleged that at the time the contract was made the plaintiff paid one thousand dollars and that thereafter, on the twenty-third day of December, the defendant tendered the merchandise, but the plaintiff refused to accept it. The defendant further alleged that he had fully performed the contract and that during the month of December, 1920, he was ready and willing to deliver the merchandise as agreed in the contract. Thereupon…