concurring in part; dissenting in part.
The doctrine of the law of the case has no application to defendant Certified since at the time of the former adjudication in favor of defendants Krupicka, Certified was not a party to the case, having previously been dismissed from it upon a motion for an involuntary nonsuit.
The adjudication against plaintiff and in favor of defendants Krupicka does not appear from the face *525of the present complaint and, therefore, cannot be availed of by Certified by filing a demurrer. The assertion really being made by Certified is that plaintiff is collaterally estopped from raising issues which have previously been determined adversely to plaintiff in litigation with defendants Krupicka. However, collateral estoppel must be raised by an affirmative answer and cannot be asserted by demurrer.
I disagree with that part of the majority opinion which holds that plaintiff has stated a cause of action in fraud. Plaintiff alleges that Certified was guilty of fraud because it falsely represented that the sellers Krupicka were ready to close the transaction when in fact they were not. No action for fraud will lie because Certified did not secure plaintiff’s down payment by fraud nor did plaintiff rely upon any misrepresentation concerning Certified’s reason for retaining the money.
However, I would hold, as do the majority, that plaintiff’s count in conversion does state a cause of action and that the case should be remanded to the trial court for further proceeding on that count.