#### Estella M. Coster, Executrix, Appellee, v. Henry Ullrich, Appellant.

Gen. No. 21,969.

(Not to he reported in full.)

Abstract of the Decision.

Assumpsit, Action oe—when recovery may not he had under common counts. In an action of assumpsit to recover money alleged to be due, where it appeared that plaintiff’s testator and the defendant, who was engaged in the real estate business, had had various transactions together resulting eventually in an agreement to exchange the equity in a farm owned by the deceased, for certain lots, for the purchase of which the defendant held a contract, and where plaintiff filed special counts alleging that the money in question was due from the sale of a farm and that the defendant refused to account for the same, and there was no evidence to support such counts, and plaintiff then relied upon the common counts, held that, as plaintiff was seeking to recover purchase money paid on account of the farm and at the same time was retaining the contract for the purchase of the lots, there could be no recovery under the common counts.

Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed and remanded.

Opinion filed May 9, 1917.

Statement of the Case.

Action in assumpsit "by Estella M. Coster, executrix of the estate of Henry P. Coster, deceased, plaintiff, against Henry Ullrich, defendant. From a judgment for $2,230 in favor of plaintiff, defendant appeals.

Morton T. Culver, for appellant.

Benjamin F. Bartel, for appellee.

Mr. Presiding Justice O’Connor

delivered the opinion of the court.