Bunkers v. Guernsey

[1] This, case is 'before us upon rehearing, our former decision being reported in 35 S. D. 574, 153 N. W. 378. In such opinion we held with' iespondent’s contention that the action was not one in tort; that it was an action on implied *175contract for money bad and received. Apparently this bad been the view of the trial court, .as1 in rendering its findings it failed to find upon the issue of deceit raised 'by the 'pleading's. The trial court and this court in its former opinion were clearly in. error as, under the pleadings: herein, -the action was one wherein 'damages were claimed for deceit.…