Shively

On the tenth day of October, 1887, Lewis Shively purchased a tract of land from the defendant under a written contract for the sum of $4,004; $1,334.66 was paid in cash, the balance was to be paid in three installments, the last payment being due on the 10th of October, 1889, and the deferred payments, if not paid when due, were to bear interest at the rate of twelve per cent per annum until paid. The first payment was the only one made by Shively, and nothing further *260 was done by either party to the contract until the defendant on the eighth day of April, 1890, and after all the payments had been due, wrote a letter to Shively notifying him to pay up, or return the contract, or the defendant would foreclose. Subsequently, the balance of the money not being paid, defendant sold the land to other parties. Prior to the bringing of this suit Lewis Shively assigned to the plaintiff all his right, title, and interest in the claim and contract in question, and to all sums of money paid by him under said contract. This action was commenced in October, 1891, and is in the nature of an action for money had and received to recover back the first payment made by Lewis Shively under the…