on motion for re-hearing.
I. Can a party be sued for money had and received before it is received, and then recover for money received after the institution of the suit ?
II. If a refusal to render services, under the circumstances of this case, might constitute an abandonment (as intimated by the supreme court in Henry v. Bassett, supra), then the principle is clearly established that a refusal to do any other material thing, under the contract, might also constitute an abandonment. The Instruction given for the plaintiff is irreconcilable with *673this portion of the opinion of the supreme court, and the opinion of this court sanctions that instruction.
III. The institution and prosecution of a suit by plaintiffs’ testator, as attorney, or otherwise, to prevent the collection of the money specified in the warrant, ought to have operated as a bar to any recovery by him, however pleaded, whether as estoppel, or otherwise ; and, the court below ought to have so found, regardless of pleadings and instructions. Miss. Co. v. Jaekson, 51 Mo. 23; Bell v. Railroad, 4 Wall. (U. S.) 598 ; 2 Herne Estoppel, sect. 1264; 1 Greenl. Evid., sect. 531.
IY. The judgment of the circuit court ought to be reversed, so that the present state of facts could be properly adjudicated.