Barsotti

This is an action to recover $4,500 for money had and received by defendant for use and benefit of plaintiff. The trial court gave judgment to plaintiff for the amount prayed for and defendant appeals.

Defendant, a duly licensed realty broker, through his employees, induced the plaintiff, a client of his office, to deposit $4,500 with him on the $46,000 purchase price of a garage in San Francisco. The garage was owned by persons named Maggini, Garcia and Estate of Garcia. A written offer to purchase was prepared by the defendant’s salesman, dated November 19, 1928, and after providing the terms of the offer, acknowledging receipt of the deposit, the document, in capital letters, provided “SUBJECT TO AP PROVAL OF SELLER”. It was signed “E Vedovi, by Milton Toni”. Then followed these paragraphs:

The space for the acceptance by the owner was left blank. Three copies of the agreement were presented to the plaintiff and one copy was left with him. The remaining two copies were retained by defendant’s salesman. Defendant’s salesman promised plaintiff he would deliver him another copy when it was signed by the seller.

Plaintiff then made the deposit of $4,500. The only copy of the…