Burmester

This action was originally commenced against John W. Horn, defendants’ testator. Plaintiffs sought to obtain a judgment for $1,646, the amount alleged to have been- paid to Horn by them under a contract of purchase of real and personal property, the possession of which was later taken from plaintiffs in breach of their contract of purchase, and also for one thousand dollars damages suffered by them by reason of the breach of the said contract by Horn. Judgment was rendered by the superior court for the county of Sonoma against the plaintiffs herein, from which judgment an appeal was taken. Upon the appeal the judgment was reversed. In the meantime, the defendant Horn had died and the superior court, on February 18, 1918, made its order of substitution of parties defendant, ordering that the present defendants be substituted as executor and executrix, respectively, of the last will of J. W. Horn, deceased. Upon the retrial judgment was rendered for the plaintiff in the sum of $1,365.80.

[1] The defendant appeals, and presents but one question, namely: Does the amended complaint state a cause of action? The árgument upon this point is that as the amended complaint contains no…