Minor

This action is for money had and received. The only facts alleged in the complaint are that on the second day of November, 1895, defendants were indebted to plaintiff in the sum of one thousand dollars for money had and received by them for the use of plaintiff, no part of which has been paid.

The defendants did not demur, and their answer consists only of a general denial.

At the trial the plaintiff introduced evidence which tended to prove that plaintiff and the corporation defendant entered into an agreement, in writing, by the terms of which plaintiff agreed to pay to the corporation twenty thousand dollars, in six installments, all dependent as to the time of payment upon the progress of the work in the construction of a railroad which the corporation was proposing to build.

The first installment was to be paid as follows: “Five per cent of said amount on call and after the terminal is secured on Humboldt Bay.”

The written contract was signed only by the plaintiff, but there was an indorsement upon it as follows:

All this evidence was received subject to the objection' on the part of defendants that it was not relevant to any issue made in the pleadings.

Plaintiff owned…