Nance

This is an action brought to recover from defendant money paid him by plaintiff on a contract for the purchase and sale of certain land.

In April, 1911, the plaintiff and defendant entered into a written contract for the sale to plaintiff by defendant of twenty acres of land, known as lot 9 in a larger tract, in Fresno County, for the price of six thousand five hundred dollars, to be paid five hundred dollars down, two thousand dollars on the first day of January, 1912, and four thousand dollars in five years, to be secured by a mortgage on the premises. The five hundred dollars was paid, and the contract with a deed from the owner were, as agreed, placed in escrow in the First National Bank of Fowler, where these documents remained until this suit was brought. Plaintiff did not take possession of the property at any time. On the eighteenth day of January, 1912, a draft of seven hundred and fifty dollars was received from the plaintiff by the said bank, but it was returned to plaintiff because not complying with the escrow. On January 15, 1912, William Flack (who now held the legal title) entered into a contract, which was recorded, for the sale of a tract which included lot 9 to…