Marshall

Defendant Bernheim appeals from a judgment rendered against him and defendant Taylor in the sum of $2,833.19. Defendant Taylor failed to appear in the action and judgment went against him by default. Defendant Bernheim concedes that the sum of $472.30 was due from him to plaintiffs and on the trial offered to have judgment entered against him for that amount.

The complaint is in two counts. The first is for the recovery of money paid under a written agreement for the purchase of an automobile upon the ground that the vendors therein did not have title and the consideration for which the money had been paid had wholly failed. The second is for money had and received. The automobile which was the subject of the contract was stolen from its lawful owner in Chicago on May 29, 1920, and taken to San Francisco, where it was sold to defendant Taylor, a jewelry salesman. Thereafter, and on July 10th, plaintiffs purchased the automobile under a written lease or conditional sale contract with Taylor and it was delivered to them. The following October it was taken from them in a replevin action brought by the owner against the plaintiffs and defendants here, and in May, 1921, plaintiffs…