
    30256.
    Butler v. Reisman.
    Decided February 19, 1944.
   Felton, J.

1. The petition set forth a cause of action on the theory of breach of contract, or for money had and received. ' The evidence was conflicting and authorized the finding that the petitioner was not a promoter of the proposed corporation, but advanced to the defendant $200, for which he was to receive stock in the corporation; that he did not consent to an expenditure of the money for a purpose other than the actual organization of the corporation; that the corporation was not organized; and that the $200 was not repaid to him. It was not error to overrule the motion for a new trial on the general grounds. 18 C. J. S. 537, § 136.

2. It was error to charge the jury that if they believed the plaintiff was entitled to recover, he would be entitled to recover the amount paid by him plus interest at the legal rate, which is eight per cent, per annum. Where the rate of interest is not provided by contract, it is seven per cent, per annum. Code, § 57-101.

3. The other parts of the charge excepted to were not erroneous for any reason assigned.

4. The judgment overruling the motion for a new trial is affirmed, with the direction that the excess of one per cent, interest be written off by the plaintiff before or at the time the judgment of this court is made the judgment of the court below; otherwise the judgment is reversed.

Judgment affh'med on condition.

Sutton, P. J., and Pa/rlcer, J., concur.

Augustus M. Roan, for plaintiff in error.

Fulton Varner, contra.  