Whyte

Action for money had and received. Plaintiff is assignee of Adele Hesser, from whom it is alleged that defendant received the sum of five thousand dollars, under a verbal agreement, “upon the express condition that the defendant would immediately, upon meeting his majority, make, execute, and deliver to said Adele Hesser, as security for the payment of said sum, an assignment of all the right, title, and interest in and to” certain property situated in the city of San Francisco, of which defendant was the owner of an undivided one-eighth interest; it is alleged that at this time defendant was over the age of eighteen years; that prior to the commencement of the action defendant came of age and said Adele Hesser demanded that defendant execute said assignment, but he failed and refused to do so and wholly failed to secure said sum; on or about January 30, 1895, defendant signed a promissory note for said sum, with interest at seven per cent, payable eleven months after date, “and attempted to deliver the same to said Adele Hesser, and left the same with said Adele Hesser at her residence, but said Adele Hesser then and there refused to accept the said note .... unless said…