McCartney

On December 17, 1928, the defendant and his wife owned certain parcels of land adjacent to San Rafael. At that time they were using the land as an amusement park. They entered into a written contract with the plaintiff under the terms of which the plaintiff would be permitted to install certain amusement devices. It was further provided that the plaintiff should operate the said devices and out of the proceeds that he should pay to the defendant fifty per cent and retain the balance for his own use. The term of the contract was ten years. The instrument was acknowledged on the day of. its date and thereafter the parties entered upon the performance of the contract. On or about the first day of April, 1929, the defendant was in need of money. Tie applied to the plaintiff for a loan of $400. Under the agreement of the parties no interest was to be charged and the moneys were thereafter to be deducted from the receipts of the above-mentioned amusement devices. A little later another loan in the sum of $200 was made under a similar agreement.

Claiming that the defendant breached the agreement dated December 17, 1928, the plaintiff commenced an action to recover damages for the…