Markus

This action is for money had and received. The complaint alleges that on June 14, 1920, defendant received from plaintiff the sum of eight hundred dollars to and for plaintiff’s use. Defendant joined issue on this averment by denying that the money was so received. The court found the issue in favor of defendant, and entered judgment accordingly. Plaintiff appeals from the judgment.

At the trial plaintiff introduced evidence showing that he and defendant had entered into a conditional sale agreement, in writing, under the terms of which an automobile was delivered by defendant, as the seller, to plaintiff, as the buyer. Bight hundred dollars of the purchase price was made payable upon the execution of the instrument and the balance was to be paid in certain designated 'monthly installments. The contract provided that in the event that plaintiff failed to meet any installment when due, defendant, at his option, might retake possession and keep all payments previously made. Having paid defendant the eight hundred dollars at the time of the execution of the contract, plaintiff now seeks its recovery. The theory upon which it is sought to recover in this form of action is, first,…