Petersen

Appeal from judgment and from an order denying a new trial. The complaint states three causes of action, the second and third, however, being different counts upon the same matter. The first cause of action is to recover *50 $125, moneys alleged to have been received by defendant for the use of plaintiff on the-day of December, 1887. The first count on the second cause of action is for moneys had and received, amounting to $655, and the second count is for the same sum, alleging the facts substantially as follows: That on July 2, 1884, defendant collected from the city of San Francisco said sum on two certain judgments, one in favor of B. Bonnett, and the other of C. H. Parker; that defendant agreed to hold said money until certain disputes should be settled between B. Bonnett and Eli Bonnett as to which was entitled to the money, whereupon defendant signed and delivered to Eli Bonnett, for the benefit of all parties, the following paper:

It was further alleged that all disputes about the ownership had been settled, and all claims of Eli and B. Bonnett thereto had been sold and assigned to plaintiff, and on or about December 1,1887, plaintiff notified defendant thereof, and…