Gordon

The respondent had judgment against the appellant for the sum of $2,500 on account of damages alleged to have been suffered by the respondent by reason of the failure of the appellant to convey lands and premises in pursuance of a certain instrument in writing, in words and figures as follows, to wit:

The complaint alleges that the respondent and appellant entered into an agreement by which the respondent was to purchase, and the appellant was to sell, forty acres of land in Madera County, described as the northeast quarter of the northeast quarter of section 35, township 11 south, range 17 east, according to the terms and conditions of a certain memorandum of agreement; being the writing set forth herein. The complaint further alleges that after the execution of the writing herein set forth, the appellant, for the purpose of avoiding the terms and conditions of said writing, contracted to sell said property to one Giovanni Oberti at a higher price, and that in pursuance thereof, at a commissioner’s sale of said property which was thereafter made, said Oberti purchased said property at the commissioner’s sale for the sum of $12,500. The language of the complaint is: “That said…