Smalley

This is an appeal from the judgment.

On June 29, 1911, respondent and appellant Holt entered into an agreement for an exchange of real property, together with the passing of certain mortgages and cash considerations as a part of the trade. The sum of three thousand dollars was agreed by respondent to be paid to Holt when certain abstracts and certificates of title were brought down to date, and it was further provided, “$750.00 in cash is to be paid to H. R. Holt on this agreement on or before July 3rd, 1911, which amount is to be credited and taken out of the $3,000.00 hereinbefore mentioned in this agreement.” On July 1st Smalley paid to appellants the sum of $750 and they executed to him a document in the following form:

Florence M. Wendell was a party to the receipt, and is a party to the action only because the property agreed in the first contract to be conveyed to Holt was actually to be conveyed to her to hold for him.

The action was commenced to recover the $750 paid to appellants, upon the ground that Holt was unable, up to the time of filing the complaint, which was on September 11, 1911, to comply with the terms of the original agreement by him to be performed. The…