Harder

Action to rescind a contract for the purchase of certain real estate and to recover money paid as a deposit in part payment thereon.

The complaint is in two counts. The first is one in assumpsit for money had and received. The second sets forth at length the facts upon which the alleged obligation arose.

From the evidence it appears that plaintiff paid to defendants under a written contract the sum of $500 as deposit and part payment upon certain real property, consisting of a lot of land, together with a dwelling-house situated thereon, located at the northeast comer of Forty-fourth Avenue and Geary Street, San Francisco. The full consideration was the sum of $7,750. As to the terms of payment the agreement recited that “cash above a first bank mortgage to be raised of about $3500.” The usual customary provisions allowing thirty days to examine title and consummate sale and further time to cure any defects, and if not so cured deposit to be returned, were incorporated in the agreement.

Upon the execution of the contract plaintiff ordered a search of the title and a survey of the property at an expense of $50 for the search and $25 for the survey. The report upon these matters…