Bray

The defendant appeals from a judgment against him for $5,750, and from the order denying his motion for a new trial. The action was one for money had and received and grew out of a transaction connected with an attempted conditional sale of three automobiles to plaintiff Bray by defendant Lowery. Plaintiff’s theory of the case was that by the conduct of defendant the contract had ceased to exist and that he was entitled to the return of all of the money paid on the purchase price of the automobiles. Defendant by his answer denied all indebtedness and by cross-complaint demanded judgment for $275 which he alleged had been paid for the use and benefit of plaintiff.

On May 18, 1907, the parties to this action entered into an executory contract which was in writing whereby the plaintiff R. R. Bray was to have possession of and was eventually to become the owner of three certain automobiles upon consideration of certain payments which were to aggregate $8,250. It was understood and agreed that these automobiles were to be used by Bray for the purposes of public hiring. The title to the automobiles was to remain in the defendant George W. Lowery until the whole sum of $8,250 should be…