Paratore

Plaintiff appeals from a judgment entered after nonjury trial, denying specific performance of a contract of sale of real property owned by defendant. The premises are located at 3241-43 Mission Street, San Francisco, and respondent has operated a retail merchandising business there since 1950. The evidence will be stated in the light most favorable to respondent.

The contract was entered into on April 7, 1961 and by its terms was required to be fully performed within 90 days thereafter. The sale price specified therein is $36,000. An escrow was opened at a title company on April 7. On June 21 a portion of the building on the property was damaged by fire.

On June 30 appellant deposited the full amount of the purchase price in the escrow. However, by separate letter, he specified that this money was not to be disbursed until “the fire damage has been repaired and the premises restored to their [prior] condition. ...” On the same date appellant wrote to respondent, advising her that he “demands that the property be restored to the condition thereof as of April 6th, 1961.”

A few days later, appellant called on respondent and told her that he did not want the damage repaired but…