Hogan

Plaintiff, upon the judgment-roll alone, appeals from a judgment entered in favor of defendant.

As appears from the second amended complaint, filed after the decision of this court in a former appeal had by defendant wherein the judgment in favor of plaintiff was reversed (Hogan v. Anthony, 34 Cal. App. 24 , [ 166 Pac. 861 ]), the parties, on August 13, 1914, executed a contract, the designa tion of which is “Lease and Conditional Sale of Automobile” (the subject thereof being an auto truck), upon which plaintiff at the time paid five hundred dollars in cash, and for the balance of the purchase price or rental of $1,150 he executed his promissory notes, one of which was for the sum of one hundred dollars and by its terms due and payable on September 13, 1914. The writing contained a provision to the effect that the instrument should be construed as a lease with an option on the part of the plaintiff to acquire title to the truck for-the sum of one dollar, subject to compliance with his covenants therein contained and payment of the notes. according to the terms and conditions thereof.

The complaint embraces two counts, in one of which plaintiff alleges facts which, if true, he…