dissenting.
The theory upon which appellant seeks to recover, is, as I understand it, that the city having performed a duty in restoring the street, which, under-the law, it was the duty of appellee to perform, and for such performance having been mulcted in damages which it has paid, it is entitled to maintain. this suit as for money paid, laid out and expended, upon the implied promise of appellee to reimburse appellant.
Under such a theory it seems to me that the common counts were a sufficient basis for the admission of evidence showing the facts upon which the implied promise arose.