Stoeckle

This is an appeal by defendant, William Karr, from a judgment against him in favor of the plaintiff.

On the ninth day of August, 1910, the appellant and the plaintiff entered into a contract whereby appellant was to sell to the plaintiff a certain cigar store on Devisadero street in San Francisco. On that day plaintiff paid on account of the purchase price the sum of $30, and two days later he paid the balance of $820. Subsequently a dispute arose between the parties, and the property never changed hands. Plaintiff demanded the return of his money, and his demand being refused he brought this action for money had and received, upon the theory that no sale of the cigar store had been effected, and recovered judgment as above stated.

The sole ground urged for a reversal of the judgment is that the evidence is insufficient to support the findings. Our study of the record leads us to the conclusion that this view is untenable.

The evidence introduced by defendant tends to show that the plaintiff was offered the cigar-stand on either of two propositions. By one he was to pay for it the sum of $850 as it stood without condition or limitation of any kind. By the other proposition an…