Marks

This is an action by the assignee of Mrs. K. F. Merrill and Mrs. O. J, Schwab to recover five hundred dollars alleged to be money had and received by the defendant for the use and benefit of said assignors.

The facts of the case are: Mrs. Schwab and Mrs. Merrill had agreed to become, partners in the enterprise of purchasing a furnished apartment house in San Francisco. Mrs. Merrill had been negotiating with the defendant company, as agent, for the purchase of various apartments in the city, and had made offers upon some of these and deposited sums of money in accordance with such offers, all of which offers had been rejected by the owners, and on that account her various deposits had been returned to her from time to time. Mrs. Merrill discussed with Mr. Chambers, who was acting for the defendant company, the matter of the purchase by her of the Martinique Apartment House in San Francisco. Mr. Chambers testified that Mrs. Merrill told him at that time that she was thoroughly familiar with this apartment house and had been through it with another agent, but wished to deal with the defendant company, and in order to avoid liability for commissions to the first agent she desired the…