Bach

This action is one in assumpsit for money had and received. The case was once tried and judgment entered in favor of the defendants. On appeal to the supreme court that judgment was reversed (Smith v. Bach, 183 Cal. 259 , [ 191 Pac. 14 ]). By the terms of the present judgment plaintiffs have failed to recover anything against the defendant Bach, and their recovery against the defendant Borgh has been limited to an amount less than their claim. Plaintiffs appeal from this judgment.

As determined on the former appeal, the contract which the parties attempted to make, providing for a sale of land by the defendants to the plaintiffs, was void because made in violation of a law so framed that its effect is to impose that penalty. September 5, 1911, was the date of the contract. This action was commenced on March 4, 1916. Payments were made by the plaintiffs first to the defendant Bach, and thereafter to the defendant Borgh. All of the payments to Bach, and some of those made to Borgh, were made more than two years prior to the commencement of this action. On these facts the trial court determined that as to all payments made more than two years before the commencement of the action,…