McDermott

This is an action for money had and received, to recover $500, a deposit paid upon the purchase price of a parcel of real estate.

On or about the sixteenth day of April, 1906, plaintiff agreed in writing to purchase a certain described piece of real estate in the city and county of San Francisco, and he paid to the defendants on account of the price thereof the sum of $500. The agreement in effect provided that he should have twenty days in which to examine the title and consummate the sale. If the title was found to be defective, the seller was to be allowed thirty days after notice thereof to perfect the same, in default of which the deposit was to be returned.

At the trial it was admitted by the parties that on the eighteenth day of April, 1906, the records in the office of the county recorder of the city and county of San Francisco were destroyed by fire, so that after said conflagration there existed no record title to said property.

No notice of defective title was given by plaintiff, but on June 15, 1906, he caused notice of cancellation to be served on the defendants, based upon what may be conceded to have been untenable grounds. Accompanying this notice of rescission…