delivered the opinion of the court.

When this case was here before (51 Mo., 536), we reversed the judgment on the ground that the plaintiff’s claim, as it *370was then presented, was barred by the statute of limitations. After it went baelc to the court below, there was an amended petition filed, stating facts which evaded the bar of the statute, and to that petition a demurrer was filed and sustained, and final judgment having been rendered thereon, the cause is appealed here for review.

The amended petition contained two counts. The first alleged that on the first day of June, 1860, judgment was rendered in the Linn County Circuit Court against plaintiff, as principal, and Grant,Easley and defendant, as his sureties, for the sum of one thousand and six dollars and eight cents, and $11.62 costs, and in favor of the Merchants’ Bank of St. Louis; and that upon said judgment an execution was issued against the said parties defendant, on the 27th day of August, 1860, and delivered to Thomas N. -Rooker, then sheriff of Linn eourity; and that afterwards, on the 1st day of April, 1863, defendant 'falsely and fraudulently, and with intent to cheat, wrong and defraud plaintiff, did represent to plaintiff that he had paid off and fully satisfied said execution,’ upon which statement plaintiff fully relied, and at the instance and request of plaintiff, one Richard C. Menefee paid to the defendant in good faith the sum of five hundred dollars and took his receipt, which was on the 10th day of June, 1870, assigned to plaintiff for a valuable consideration. It is then alleged that the representations made by the defendant at the time he received the money were false, and that defendant did not pay off the execution or any part thereof, but that Thomas M. Rooker paid off and fully satisfied said judgment and execution.

The second count alleges that Brownlee, as assignee of plaintiff, paid defendant eighty-five dollars,¡[which sum was to be-appropriated to the satisfaction of a judgment, and that the appropriation was not so made, &c.

Defendant demurred to both counts, generally, because the petition did not state facts sufficient to constitute a cause of action, and specially: 1st. Because-there is a defect in parties plaintiff in this, that from the allegation contained in the first count, if any cause of action exists in favor of any one §-gainst *371defendant, such cause of action would be in favor of either Richard C. Menefee or Thomas M. Rooker, and no assignment of such alleged cause of action is set up in said count in the petition; and 2ndly, as to the second count in the petition, plaintiff does not show any right or interest in the alleged claim against defendant for the money charged to« have been received by him from Wm. H. Brownlee.

As to the propriety of the court’s action in sustaining the demurrer to the second count, I entertain no doubt. Plaintiff did not show that he had any interest in the money. He alleged that his assignee, Brownlee, paid the money, and therefore the right and title seems to be in Brownlee, and, if any person is entitled to recover it back he would be the proper person to do so. But as to the first count, I am of the opinion, that the court improperly sustained the demurrer. If Rooker, as is alleged, paid off and satisfied the execution, his recourse would be against the defendants in the execution for money paid for their use, but he could not sue on this demand specially paid by Richard C. Menefee, for there would be no privity existing between the parties. So, in reference to the payment made by Richard C. Menefee, it was at the instance and request of the plaintiff, and the plaintiff would alone be liable to him. The plaintiff avers that the money was paid at his instance and request, and that may be regarded as equivalent to saying that he paid the money or caused the same to be paid. If so, I see no obstacle in the way of his recovering it back.

The judgment should be reversed and the cause remanded, with permission to the defendant to answer.