Sessions

The defendant appeals from the judgment and from an order denying his motion for a new trial.

The action was commenced against Sarah Johnston Cox to recover the sum of three hundred and five dollars alleged to have been paid by the plaintiff at the request and for the use of Mrs. Cox, the payment having been made to a fund for the widening of certain streets in the vicinity of land owned by her in the city of San Diego. Mrs. Cox died while the action was pending and the defendant executor has been substituted in her place.

It appears that on October 11, 1907, Mrs. Cox executed and delivered to plaintiff an agreement to sell to plaintiff two lots in the above mentioned tract of land for the sum of one thousand five,hundred dollars, “to be paid at the Bank of Commerce upon the delivery of a deed and certificate of title made by the Abstract Title & Insurance Company.” Appended to the same contract and dated on the same day is an additional agreement by Mrs. Cox as follows: “I agree to subscribe $300 to the fund for widening of Washington and Lewis streets and to pay the same with a check of the Bank of Commerce from the amount deposited to my account by K. 0. Sessions.” At that…