Hellman

This is an action to recover from defendants the sum of five hundred dollars, money had and received by them for the use of the plaintiff, with interest thereon from December 10, 1891. The plaintiff had judgment as prayed for, and the defendants appeal from the judgment and an order denying a new trial.

On December 10, 1891, defendants, as executors of the last will of D. Mahlstedt, deceased, executed to plaintiff a written contract, which, after acknowledging the receipt of five hundred dollars, “ being a deposit and part payment on account of a bargain and sale made” to him of a certain described lot or tract of land, *663 proceeds: “ Said tract of land above described having been sold to said Maurice S. Hellman this day for the sum of sixteen thousand dollars, less mortgage of ten thousand dollars, provided, that the undersigned make' this agreement with the understanding that it shall be considered merely as a bid in advance of the order of the court authorizing a sale of said property; and. that the executors of said estate shall not be held to accept said bid in case they secure any higher bid, nor shall they be in any manner bound by this agreement or liable thereon,…