McInerney

This is an appeal by the defendant from the judgment and from an order denying his motion for a new trial.

The complaint states simply that the defendant became indebted to the plaintiffs in the sum of one thousand dollars for money had and received by the defendant for plaintiffs’ use and benefit.

The defendant answering denies that he became indebted to plaintiffs in said or any sum of money had and received by him for plaintiffs’ use and benefit, “or in any other manner or at all.” As a further defense he avers that on January 31, 1914, he received from plaintiffs the sum of one thousand dollars in accordance with the terms of a written agreement which is made a part of his answer, and'in which it is recited that the defendant, Mack, received the one thousand dollars from plaintiffs and agreed to hold and dispose of it in accordance with the agreement; that the plaintiffs were the owners in fee of three lots and improvements in a subdivision known as “Corte Madera Woods” and a six-room house thereon; that Anna M. Howes and Earl E. Howes owned a lot on Parnassus Avenue, in San Francisco, with an apartment building thereon; and then provides that if within forty-five days Mack…