Gally

The plaintiff, as assignee of M. Berman, commenced an action against the defendants to recover a judgment for moneys had and received. The defendants answered and a trial was had before the trial court sitting without a jury. The trial court made findings of fact in favor of the plaintiff, and from a judgment entered thereon the defendants have appealed under section 953a of the Code of Civil Procedure.

Heretofore the defendants were the lessees and were conducting a drygoods store at 111 Powell Street. Being de sirous of going out of business, they arranged to conduct a sale of their merchandise and at the same time they entered into a contract with M. Berman, under the terms of which they agreed to sell and M. Berman agreed to buy the “fixtures, goodwill and the lease of the premises.” The purchase price was $3,500, of which $750 was paid down when the agreement was entered into March 1, 1927. Attached to the agreement was an inventory. Two or three days after the agreement had been executed the defendants executed a writing in which they agreed that in conducting their sale they would not use “the terms going out of business or quitting business but to use substantially the…