Evidence—Written Instruments—Parol Evidence to Vary Terms.— The rule excluding parol evidence to vary, explain, or contradict the terms of a written instrument is confined to controversies between parties or privies to the instrument.

Conversion—Landlord and Tenant—Property Left by Tenant on Leased Premises After Re-entry by Landlord—Amount of Damages.—Where a landlord, after re-entry upon demised premises, under a judgment in unlawful detainer for default in payment of rent, sold to a new lessee personal property of the tenant, consisting of theater seats which had been used by the tenant in operating a playhouse therein, and had been left by him on the premises, the tenant, in an action for conversion against the landlord, was entitled to reeover only the value of the personal property, and not a larger consideration stated in the bill of sale, it being shown that other considerations entered into the transaction, chief among which was the new lease at a greatly reduced rent.

Id.—Trust—Commingling of Goods.—In such a case, assuming that, in the broad sense, a trust existed, there was no such “commingling of goods” as would entitle the plaintiff to the whole purchase price received, when the value of the goods was readily ascertainable.

Id.—Money had and Received—Appeal—Harmless Error.—In such case, conceding that the court erre'd in finding that the defendant’s testatrix was not indebted in any sum whatever for money had and received for the use of plaintiff, the error, if any, was cured by a judgment rendered in plaintiff’s favor for the value of the property converted.

Id.—Appeal—Amendment of Complaint by Plaintiff Under Protest. Where, in such case, the plaintiff having sued on two counts, one for money had and received and the other based on the theory that the defendant’s testatrix was an involuntary trustee, and accountable for seven thousand five hundred dollars (the consideration stated in the bill-of sale of the property), and the court, at the close of the trial, stated that upon the evidence plaintiff was entitled to recover the value of the property, but judgment must go for the defendant unless plaintiff would amend his complaint, whereupon plaintiff, under protest, amended his complaint, and judgment was rendered in his favor for two thousand dollars, found to be the value of the property converted, it being optional with plaintiff whether or not he'amended and took judgment for two thousand dollars or, in the absence of amendment, allowed judgment to go for the defendant, he was not prejudiced by the action of the court.