Davidson

This is a second appeal. The opinion of the court upon the first appeal is reported in 73 Cal. at page 522.

The complaint contained a cause of action upon each of three claims assigned to plaintiffs, and three counts *190 upon each cause of action. The first trial was confined to the first count upon each cause of action, and involved the liability of defendants to them upon the contract hereinafter referred to. Upon the second trial no evidence was given by the plaintiffs under the first count, but they based their right to recover upon the second and third counts of each cause of action.

The second count, after alleging the indebtedness of the Cooks to plaintiffs’ assignors upon an account stated, alleged, in substance, that the Cooks delivered to defendants L. Davidson and S. C. Peek gold dust to the value of five thousand five hundred dollars, “ it being at the time of said delivery of gold dust to said defendants understood and agreed by and between said defendants A. Cook and W. Cook on the one side, and the defendants L. Davidson and S. C. Peek on the other, that out of said five thousand five hundred dollars in gold dust the said Davidson and Peek should pay and…