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P laintiff appeals from a judgment rendered in favor of the defendants in an action brought for money had and received.

Plaintiff and defendants entered into a verbal agreement for the sale of real property whereon plaintiff made a payment of $1,000 to the defendants, which payment was to be applied upon the purchase price of $9,250. Thereafter, on April 9, 1923, the parties went into escrow, and plaintiff signed escrow instructions containing the following language :

Defendants’ escrow instructions were given at the same time, as a part of the same instrument, and contained the following:

The sum of $8,250 nor any other sum was ever deposited in escrow by the plaintiff; neither was the deed conveying the property ever deposited in escrow by the defendants.

Appellant contends that plaintiff and appellant was not in default and was not required to pay his money in advance of receiving title to the property; that defendants and respondents were in no position to demand the money or to declare a forfeiture of the money paid on the purchase price until they had acquired title to the property and tendered it to plaintiff and appellant; that tender of the money by plaintiff was…