2. Limitation of actions, § 11*—what is test in determining whether ten or five-year statute applies as to contract. In ascertaining whether the ten or five-year Statute of Limitations is applicable in an action on a contract, the test is whether the contract sued on was in writing or oral, and if the promise is in fact, oral, it is immaterial that it arose in the first instance out of a written contract.3. Limitation of actions, § 12*—when contract oral and governed by five-year statute. An action to recover purchase money paid under a contract which contains no specific promise to return the purchase money, rests upon an implied promise which, being oral, is governed by the five-year limitation.4. Appeai, and ebbob, § 1236*—when not considered on appeal that damages were assessed on theory that action was for return of purchase money. Where the statement of claim does not clearly state the breach of contract relied on, but does not purport to be for the return of purchase money paid thereunder, and defendant does not seek a better statement and no propositions of law are submitted, and the damages assessed, though equivalent to the amount paid in by plaintiff, are also the amount which, prima facie, he was entitled to recover as damages for the breach, it will not be held on appeal that the damages were assessed on the theory that the action was for the return of the purchase money.
