Widenmann

The defendant appeals from an order denying his motion for a new trial.

The plaintiff sued to recover the sum of $4,875 alleged to belong to the plaintiff but which the defendant has in his possession and refuses to pay over to the plaintiff. The facts are as follows: In a suit in partition, entitled Catherine Magee et al., v. James Magee et al., pending in the superior court of Solano County, a sale of the land was ordered and R. J. R. Aden and two others were appointed as referees to make the sale. The sale was conducted by Aden, who, on April 23, 1908, sold the land to Henry Widenmann, the plaintiff, for ten thousand five hundred dollars, and received from him the purchase money. Widenmann bought the property at the instance of James Magee, who advanced to him one thousand five hundred dollars for that purpose, and it was the understanding between them that after the purchase from the referee was consummated Weidenmann would resell the property to Magee. On May 1, 1908, Widenmann agreed to sell the land to Magee for ten thousand five hundred dollars and to convey the same as soon as the partition sale was confirmed. Magee owned one-half of the money realized bn the partition…