Allen

On January 29, 1961, plaintiffs and defendants entered into a deposit receipt agreement wherein defendants agreed to sell and plaintiffs agreed to buy a house and lot located on Cervantes Road, near Redwood City, San Mateo County. Plaintiffs made a deposit of $2,700 on the purchase price of $28,250 but thereafter refused to complete the transaction on the ground that the lot area was less than represented.

The trial court held that the agreement was binding upon plaintiffs and awarded damages to defendants in the amount of the deposit. Plaintiffs appeal from the judgment.

Appellants state their position as follows: “Unless the deficiency in the quantity of the property to be conveyed is insignificant or if it is clear from the agreement that the parties did not consider the quantity of land important, a purchaser is entitled to the quantity of property which he agreed to purchase.”

On the other hand, appellants acknowledge that “The question of whether the failure to convey the agreed quantity is a material and substantial failure under the circumstances is of course a question of fact.” We shall, as we must, view the evidence in the light most favorable to the judgment of the…