Anderson

Appeal from judgment of nonsuit.

The complaint stated a cause for money had and received in three counts, the first count for five thousand dollars, from W. S. Wright, the second for two thousand dollars, from W. S. Wright, and the third for money had and received from plaintiffs in the sum of three thousand dollars. Under the 'first count an assignment to plaintiffs of Wright’s claim is set out. Prayer is for five thousand dollars, with interest from November 7, 1919.

Defendant, Wilton Securities Company, sued as Julius Levin Company, answered denying all the allegations of the complaint, and alleged that none of the counts stated a cause of action against defendant.

The facts, briefly stated, show that on November 3, 1919, W. S. Wright, plaintiffs’ assignor here, entered into an agreement of lease with Julius Levin Company for certain premises on Van Ness Avenue, San Francisco, at a stipulated rental. The lease, as consideration for its execution, contained a provision for the payment, simultaneously with execution of the lease, of the sum of five thousand dollars. It was later provided that if the provisions of the lease were fully performed, the sum so paid might be applied…