Defendants’ principal assignment of error is that the plaintiff having brought this action on a common count for money had and received, there is a fatal departure in that the proof discloses a written contract executory in its terms. Plaintiff in his complaint alleges:
“That on or about the 29th day of March, 1919, the defendants had and received of plaintiff the sum of $5,000, which they promised and agreed to repay to plaintiff upon demand.
“That plaintiff on or about the 21st day of February, 1921, demanded of defendants the return of said money, which they declined, refused, and neglected to do, and the whole amount thereof since said 21st day of February, 1921, has been and now is due and owing from defendants to plaintiff.”
It is certain that a cause of action is stated, whether it be considered an action in general
assumpsit
or on an express contract. Since the complaint was not challenged by motion or demurrer, we are of opinion that defendants’ contention is untenable if the proof supports either theory. We are not unmindful of the rule that an action for money had and received cannot be supported by proof of a special executory contract, for the law will not
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imply a promise where an express promise exists: 5 C. J. 1386. In other words, the proof must support the theory of the complaint. It is also well established that where a contract has been fully performed by one party, and nothing remains to be done but the payment of money by the other, the party who has performed his part of the contract may sue for and recover the amount due under the common counts in
assumpsit,
using the contract as evidence:
Levin et al.
v.
Strempler,
“When a contract has been fully executed and nothing remains to be done but the payment of the price agreed on, the plaintiff may declare specially on the contract, or he may rely on the common counts in indebitatus assumpsit.”
Let us consider the contract offered in evidence. Wherein is it executory so far as the plaintiff is concerned? Aside from paying to defendants the sum of $5,000, what more was there for him to do under its terms? It is conceded that defendants did not suffer loss while Graham was operating his business, and there is ample evidence that the contract had terminated, so it follows that plaintiff, upon demand, would have been entitled to a return of his money, unless the contract had been extended, as claimed by defendants. If plaintiff agreed that the $5,000 should be used by defendants in financing the company, as was done with Graham, then it would likewise follow that no recovery could be had, for the plaintiff’s share of the losses sustained would exceed the amount of his investment. The evidence is con *443 tradictory relative to this phase of the case, and the finding of the trial court that the contract was not extended or modified is equivalent to the verdict of a jury, and is therefore final and conclusive on this court.
Error is predicated on refusal of the court to permit witness for appellants to answer the following question, “Based upon the books and records of McGargar, Bates and Lively, can you tell the court how much brokerage was paid to John M. Sharp, plaintiff in this case, prior to November 20, 1919?” No offer of proof was made, and we are unable to say whether defendants’ rights were substantially affected on account of the court’s ruling in this respect. We will not presume error.
Exception is taken to the ruling of the court in sustaining an objection to a question asked plaintiff as to whether a profit or loss was made on a certain second-hand car owned by J. H. Graham and taken over by the corporation. The trial court was right in its ruling. As we interpret the contract it had no application to second-hand automobiles. The money advanced was to be used “in paying bills of lading and drafts upon automobiles to be placed in bonded warehouse.” The contract further provided that the cars should be immediately warehoused and “in no case should the money be used for the purpose of handling automobile installment contracts or lease paper.” Considering the contract in its entirety, we are satisfied that second-hand cars were not within the scope of its terms, and therefore the information sought to be elicited was irrelevant.
In view of the conclusions reached we do not deem it necessary to consider other minor assignments of error. Suffice it to say, we are of opiiiion that the *444 record is free from any error that wonld warrant a reversal.
The judgment of the lower court is affirmed.
Affirmed.