that the said defendants on the twenty-ninth day of March, 1911, refused to carry out any of the terms and conditions of said contract on their part, and the said sum of two thousand five hundred dollars, together with interest thereon from the thirteenth day of December, 1910, is due, owing, and unpaid from the defendants to this plaintiff." Separate briefs have been filed on behalf of defendants. [1] We think argument is unnecessary to sustain the judgment refusing general damages because of alleged breach of contract to convey the real property. In that particular we think that the evidence was sufficient to authorize the court in concluding that defendants did not act in bad faith in failing to complete the deal, and that the particular sale contemplated under the receipt issued to Downing was refused approval by the Keating Estate. Such being the case, the contract necessarily failed of consummation and Downing's only right was to recover the two thousand five hundred dollars deposited. We have noted that this money was in words offered back to him and that he announced that he would refuse to accept it.

[2] Defendant Marsh, by his counsel, makes the contention that the complaint was inconsistent, first, in that there was attempted to be alleged a cause of action for breach of contract which necessarily assumed the existence of a contract, and, secondly, a cause of action for the return of the two thousand five hundred dollars, to sustain which the assumption must be indulged that there was no contract. No demurrer was interposed to this complaint, except the general one that it failed to state facts sufficient to constitute a cause of action. No special ground was alleged against its form or substance. That being true, if sufficient facts can be gleaned from the complaint to show a cause of action for the recovery of the two thousand five hundred dollars, disregarding the other allegations, then as to that branch of the case the complaint must be held sufficient; and we think the facts are so sufficiently stated. To be sure, the terms of the receipt are not fully exhibited in the complaint, especially as to the condition that approval should be had of the Keating Estate; nevertheless, it is alleged that the deposit was made and that the defendants failed to complete their part of the transaction. The ultimate fact, we think, was sufficiently stated, although the facts as shown in evidence not only explained

and justified the refusal of defendants to make conveyance. but showed that they had in good faith offered to return the two thousand five hundred dollars and that Downing had refused to accept the same. However, on the evidence presented to the court, we can see no legal reason why Downing should not have recovered the two thousand five hundred dollars he deposited.

A number of additional questions concerned in the controversy are quite elaborately argued in the brief of defendant Hollingsworth. At the outset we agree with the contention of this defendant that no recovery should have been had against him for the deposit money, because Downing's deal was made with Marsh. The evidence sufficiently shows this to be the case. Downing in his testimony stated that when he paid the two thousand five hundred dollars to Hollingsworth, Hollingsworth stated to him that it was Marsh's money and that he would give it to him. As our conclusion just announced as to this defendant puts him out of the controversy, it is unnecessary to give particular attention to much of the further argument presented by his brief, although we will notice one or two of the main propositions, as they are matters which apply equally to the codefendant. Attention has already been called to the fact that this transaction was entered into on the one part by J. O. Downing. The reason that this action was brought in the name of Hay was explained by Downing. Downing testified that while he acted apparently in his own right in making the deal with defendants, he in truth was the attorney in fact for Hay and that it was Hay's money which he expended and was to expend on account of the purchase of the land. He testified that he was to have had some interest in the returns from the property, but the testimony was clear to the fact that the money expended was Hay's and that Hay was the principal party entitled to be represented in the transaction. [3] We think there is no merit in the contention that Downing should have been joined as a party because of some after-interest which he was to have in the land had it been secured. The question of the right of an undisclosed principal to sue in his own name in a transaction of this kind, is made the subject of a lengthy argument in one of the briefs. It is stoutly contended that the contract attempted to be made between Down

ing and the defendants, or Downing and Marsh, was one in which there could be no substitution of an undisclosed principal against the wishes of the other contracting parties. This on the familiar ground that a person generally has the right to choose the party with whom he will contract and that it will be assumed, where the real principal is totally undisclosed, that such parties looked to the individual honesty, credit, and standing of the person who afterward claims to be only an agent, and that they have the right to insist upon the contract being carried out as to parties precisely as made. There is no disputing this rule; it is a familiar one and applies to a variety of conditions and cases, but has no application here. In the first place, this is not an action to compel specific performance, and there are no obligations to be performed in the future for which Downing's credit and standing may be available to defendant Marsh. The benefits to be derived from a transaction may always be assigned, and they may likewise always be enforced by an undisclosed principal where full consideration has been rendered by the agent. (2 Mechem on Agency, 2d ed., secs. 2062, 2063, et seq.) We may add that there never was a completed contract in this case. The deposit was taken as a preliminary and the receipt issued; these things having occurred with the express condition that the approval of the Keating Estate should be secured before the parties were to become bound to the further terms agreed upon. That approval was not secured and the negotiations were closed and terminated. There was nothing more for Downing to do, but there did remain in the hands of Marsh the two thousand five hundred dollars belonging to Hay, which Marsh was bound to return.

[4] It is contended further that even as to the two thousand five hundred dollars, this money could not be recovered by the depositor until he had offered to perform the further conditions set forth in the memorandum. As we construe those terms, the depositor was entitled to have an approval of the deal made before he would be called upon to pay any more money. Conceding that he was not so entitled, nevertheless it was announced at about the time the second payment became due, and continuously thereafter, that defendants were unable to procure the approval of the Keating Estate, and they offered

that Marsh would return the money deposited. The case is not at all like that of Mattingly v. Pennie, 105 Cal. 514, [45 Am. St. Rep. 87, 39 Pac. 200], where a broker sought to recover a commission when he had not produced in sufficient manner a buyer who was ready, able, and willing to purchase. The court there held that he could not rely upon the statement that the vendor would refuse to sell, and in order to complete his right to a commission he must do those things which are well established to be requisite to the earning of brokerage. In this case the refusal of the Keating Estate to approve the sale of the land had put an end to the deal between the parties, and it is an admitted fact that any tender made by Downing on his own or his principal's behalf would have been absolutely fruitless of results.

For the reasons which we have stated, we think that the court was in error in part, in that the jury should have been allowed to find for the plaintiff as against defendant Marsh in the sum of two thousand five hundred dollars. This without interest, because Downing had refused to accept the money at the different times it was offered to him. The judgment and order are reversed.

Conrey, P. J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on August 12, 1919; and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 11, 1919.

All the Justices concurred.

[Civ. No. 2870. First Appellate District, Division One.-July 16, 1919.]

WARREN BROTHERS COMPANY (a Corporation), Appellant, v. THOMAS F. BOYLE, as Auditor, etc.; Respondent.

[1] STREET LAW-SAN FRANCISCO-IMPROVEMENT OF ACCEPTED STREET. The city and county of San Francisco has authority, under its charter, to improve an accepted street under the direction and control of its board of public works.

[2] ID.-DUTY TO KEEP IN REPAIR AND IMPROVE.-The duty to keep in repair and improve its duly accepted streets, or portions thereof, is imposed upon the city and county of San Francisco by its charter.

[3] ID.-ORDERING OF WORK BY SUPERVISORS-WRITTEN RECOMMENDATION BY BOARD OF PUBLIC WORKS.-Application for the doing of any street work, or improvement, must, in the first instance, except as otherwise provided in the charter, be made by the proper parties to the board of public works, which may in turn recommend that the work be done. No street work, or improvement of any kind, can be ordered by the supervisors to be done unless a written recommendation to do the same has been made to them by the board of public works, except that in case an application is made for any work or improvement the expense of which is to be paid by the city and county, and the board of public works shall not approve of the application, and it shall report to the supervisors its reasons for such disapproval, the supervisors may then, after having obtained from the board of public works an estimate of the expense of the work or improvement, by ordinance passed by the affirmative vote of not less than fourteen members of the board, order that the work be done. [4] ID. WHEN BOARD OF PUBLIC WORKS MAY RECOMMEND ESTIMATE OF EXPENSE.-Under the charter of the city and county of San Francisco, the board of public works may recommend any improvement the expense of which is to be paid by the city and county, though no application may have been made therefor, but must make, with such recommendation to the supervisors, an estimate of the expense.

[5] ID. IMPROVEMENT OF STREETS-PAYMENT OF EXPENSES.-Under the charter of the city and county of San Francisco, the expense of all work, or improvement, done on streets, crossings, and intersections of streets, that have been accepted by the city and county, after the acceptance of the same, and all repairs and improvements deemed of urgent neces-ity that may be made upon the public streets, shall be borne and paid for out of the general