Ingalls

The plaintiff appeals from the judgment and from an order denying his motion for a new trial. The complaint states a cause of action on a check made by the defendant to the plaintiff on the twenty-sixth day of March, 1913, for the sum of five hundred dollars. Thereafter the defendant notified the bank to refuse payment on the cheek and payment was refused.

The cheek was given as a deposit on account o"f the purchase price of real property in the city of Bakersfield which the plaintiff sold to the defendant. The contract of sale bears the same date as the check, and was made “subject to administration of the John E. Bailey Estate.” The terms of sale were stated as follows: “Two days are allowed to examine title and consummate sale, at the termination of said time the balance of said purchase money is due, and payable upon tender of the deed of the property sold. If title is defective, thirty days are allowed to perfect the' same, and if after the expiration of said term (unless extended by mutual consent) the title is incurably defective, then the deposit is to be returned. If the sale is not consummated in accordance with the foregoing conditions, the deposit is to be forfeited.…