Smith v. Bach

CONREY, P. J.

This action is one in

assumpsit

for money had and received. The case was once tried and judgment entered in favor of the defendants. On appeal to the supreme court that judgment was reversed

(Smith

v.

Bach,

183 Cal. 259, [191 Pac. 14]). By the terms of the present judgment plaintiffs have failed to recover anything against the defendant Bach, and their recovery against the defendant Borgh has been limited to an amount less than their claim. Plaintiffs appeal from this judgment.

As determined on the former appeal, the contract which the parties attempted to make, providing for a sale of land by the defendants to the plaintiffs, was void because made in violation of a law so framed that its effect is to impose that penalty. September 5, 1911, was the date of the contract. This action was commenced on March 4, 1916. Payments were made by the plaintiffs first to the defendant Bach, and thereafter to the defendant Borgh. All of the payments to Bach, and some of those made to Borgh, were made more than two years prior to the commencement of this action. On these facts the trial court determined that as to all payments made more than two years before the commencement of the action, the right of action is barred by the provisions of subdivision 1, section 339, of the Code of Civil Procedure. The judgment against Borgh covers only payments made within said period of two years. We think that the statute of limitations was correctly applied by the lower court to the facts found.

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The contract • being illegal and void, the vendees received no consideration for the payments made by them, and they were entitled immediately to sue for and recover those payments.

(Richter

v.

Union Land etc. Co.,

129 Cal. 367, 373, [62 Pac. 39].) Being so entitled and there appearing no equitable consideration relieving them from the effect of the rule, the time

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