Papeschi

The plaintiffs commenced an action against the defendants to recover money. They were given judgment against one of the defendants and that defendant has appealed. They were refused judgment against the other defendants and from that portion of the judgment the plaintiffs have appealed.

The plaintiffs pleaded their claim in three separate counts. On the third count neither party introduced any evidence and no findings were made. The first count was framed as a common count for money had and received. The second count pleaded a written promise to pay. The defendants filed answers denying the allegations contained in each count and each defendant alleged that the plaintiffs rescinded the contract. Among others the court found, “That within two years last past, at the City and County of San Francisco, State of California, defendant G. Fracchia, originally sued here and sometimes known as S. Fracchia, became indebted to plaintiffs, in the sum of $600, for and on account of moneys had and received by said defendant for the use and benefit of plaintiffs, and which said sum said defendant in writing promised and agreed to pay to plaintiff; that although demand has been made on said…