Hesse

Plaintiff sued on a common count for money had and received. He had judgment for $411.81 and defendant has appealed upon typewritten transeiipts.

The evidence is that the money was paid to the defendant, or to its assignor, on account of a conditional sales contract covering the purchase of an automobile. On July 17, 1926, the plaintiff paid to the defendant’s agent $53.20, which represented two overdue installments on the contract. At that time the agent agreed with plaintiff that he could make the two final payments on the contract ($26.59 each) in thirty and ninety days, respectively, though one of these payments was then due. Knowledge of this agreement was transmitted to defendant by an indorsement on the back of plaintiff’s check of $53.20 which read as follows: “Balance of account on contract as held by Commercial Credit Co. of $53.20 to be paid Aug. 20 and Oct. 20, 1926.” Under this indorsement the defendant added “Not a payment in full. Pay to the Dexter Horton National Bank of Seattle or order, Commercial Credit Co.”; it then cashed the check and retained the proceeds. Within a week thereafter, and with but $53.20 remaining payable under the contract, the defendant…