Swain

A demurrer to the amended complaint was sustained in the court below, and judgment went for defendant. Plaintiff appeals.

The action is to recover two thousand dollars alleged to have been received by defendant for the use of plaintiff. The alleged cause of action is founded upon a written contract, set out in full in the complaint, between defendant and one Devendorf (plaintiff’s assignor), executed February 14, 1892. The contract is, in substance, as follows: It recites that Jacks had brought an •action for the foreclosure of a mortgage executed to him by Devendorf and one Capp, dated June 22, 1887, for four thousand dollars, with interest at eight per cent per annum, compounded semi-annually, and that Jacks proposed to proceed to judgment and have the mortgaged premises sold. Then Devendorf agrees to pay Jacks two thousand dollars upon the latter’s *217 agreement to bid in the premises at the foreclosure sale for the amount of the judgment; and Jacks agrees that upon the payment to him of the two thousand dollars he will bid in the premises “for the full amount of his judgment, claim, interest, costs, and expenses of said action.” Jacks further agrees that in the event that no…