Taylor

Judgment for plaintiff, motion for new trial denied, and defendant appeals from both judgment and order.

The complaint i§ in three counts. The first is for the recovery of five hundred dollars, money paid on account of the purchase of an interest in certain lands, under an agreement that if upon examination of abstract it was found that title was not good the money was to be refunded, and alleging that upon such examination it -was found that the title was not good; the second, upon the common count for money had and received; and the third, for the recovery of the same money upon an alleged parol agreement to repay the same and rescind the contract mentioned in the first count. Upon the trial the claim under the third count was abandoned, and no findings are presented on the issues presented by said third count and the answer thereto.

The answer admits the making of the contract set out in the complaint, and the receipt of the five hundred dollars on account of the same, but contains numerous denials going to the legal effect and meaning of the contract, and then proceeds to deny that the title as shown by the abstract furnished by defendant was defective, and alleges that such…