¶1The plaintiffs filed in this case a declara*217tion on the special case, setting foEth that on the 12th day of October, 1875, defendant was the owner of certain real estate which he agreed to sell to the plaintiffs for the same sum of money which he had paid for it, but falsely and fraudulently pretended he had paid for it the sum of four thousand dollars; that plaintiffs agreed to buy said real estate and to pay defendant therefor what he had paid for it, and that deceived by defendant’s fraudulent representations they paid defendant the sum of four thousand dollars; that in fact defendant only paid seventeen hundred dollars for said real estate, whereby said plaintiffs- have been damnified, etc.
¶2No doubt the pleader intended this as a count for a tort, and insisting upon it as such in the court below, judgment went against him on the ground that no cause of action was alleged. The reason was that the false affirmation relating to the price paid for the land was not one upon which the plaintiffs had a right to rely.
¶3Had the plaintiffs insisted upon their declaration as a sufficient count for money had and received by defendant to their use, probably the ruling in the circuit court would have been different. The recital of facts shows a bargain for the lands at a price measured by the cost, and an overpayment brought about by misinformation, whereby an action arises to demand and receive back what was overpaid. A good cause of action in assumpsit might be better set forth, but the substance is here.
¶4The judgment must be reversed and the cause remanded for trial. No costs are awarded in this court.