
    Jacob L. Everitt, Respondent, v. James R. Conklin, Appellant.
    (Argued October 12, 1882;
    decided October 24, 1882.)
    The complaint in this action allegéd in substance that one Oopley, plaintiff’s assignor, and defendant in November, 1876, entered into an agreement, by which the latter agreed to sell to the former a farm, he agreeing to pay $10,000 of the purchase-price three months from date and the balance in installments, defendant to convey free of incumbrances on payment of the $10,000. In December, 1876, Oopley executed to defendant a note of $500, for his accommodation but with the agreement that the amount thereof might, if Oopley desired, be deducted from the $10,000 payment. That Oopley was ready and willing to perform the contract at the expiration of the three months, but that defendant was unable to convey free of incumbrances, and thereupon Copley rescinded the contract. That defendant transferred said note, and Oopley was compelled to, and did pay the same. The court submitted to the jury two questions, first, whether the note was an accommodation note, or made and delivered as a payment on the contract ; second, if given as a payment, was there a failure to perform on defendant’s part which justified Oopley in rescinding. The court charged in substance that in either event if the note was simply an accommodation note, or if it was a payment and the contract was rescinded because defendant was unable to perform, plaintiff was entitled to recover. Defendant excepted to the submission of the last question to the jury, claiming that if the note was given as a payment, plaintiff could not recover, as the complaint was simply to \recover moneys paid on an accommodation note.
    The court here say: “We agree with the learned counsel for the appellant in the fundamental propositions of his argument, that there was but a single cause of action stated in the complaint, and that it could not be displaced on the trial by one different and inconsistent with it, and not within the scope of the pleading. But we disagree with him as to what the essential cause of action stated in the complaint really was. He describes it as an action to recover moneys paid on an accommodation note. We deem it an action for money had and received by the defendant to the use of the plaintiff’s assignor, and which, ex cequo eb bona, the defendant ought not to retain. The details of fact and the special circumstances which go to establish and prove this cause of action may be very various and differ widely, while yet such cause of action may remain the same. It was upon such a theory that the complaint was framed. Practically the plaintiff said, the defendant has got my money without any consideration, and without any legal or equitable right to retain it, and refuses to pay it back on demand; and this is true because I made and paid a note for his accommodation, and even if it should be found, as he is likely to claim, that the note was applied on a land contract, still I insist that my cause of action remains, and the money was mine and not his, because I rescinded that contract as I lawfully might, and so am still entitled to recover for money had and received. We can see no impropriety in such a mode of pleading. It states all the facts, and states them consistently with one cause of'action, and one right of recovery, whether the facts out of which it arose are found to be in accord with either the plaintiff’s or the defendant’s version of them. There is, therefore, no ground for the complaint that the trial court submitted to the jury the double question whether the note was accommodation paper, and if not and found to have been applied on the contract, whether the latter had been lawfully rescinded for the failure of the defendant to perform, so that the cause of action to recover back the money paid remained. And it follows also that the trial court was right in refusing to require plaintiff to elect whether he would proceed upon the theory of an accommodation note or that of a payment on the contract.”
    
      H. Boa/rdman Smith for appellant.
    
      JE. J. Baldwin for respondent.
   Finch, J.,

reads for affirmance.

All concur, except Tract, J., taking no part, and Batallo, J absent.

Judgment affirmed.  