Tatum

The plaintiff in this action brought suit against the defendants for the specific performance of an option contract for the sale of real estate, with an alternative prayer for damages for violation of the contract. The defendant Adolph Levi filed a cross-complaint on the fifteenth day of May, 1928, alleging that the option contract was a contract for purchase and sale and that the cross-complainant offered on the sixth day of April, 1928, to convey the property to the plaintiff, but that the plaintiff refused to accept the offer, and prayed for the specific performance of the option agreement. Thereafter, permission of the court having been duly obtained, the plaintiff filed an amended complaint against the defendants for the recovery of $5,000 which was the deposit made by plaintiff’s assignor at the time of the execution of the option contract. It was alleged in the amended complaint, as well as in the original complaint, that the defendants had failed to perform the terms and conditions of the option contract and that the plaintiff was therefore entitled to a return to him of the deposit made by his assignor. After a trial before the court without a jury, judgment was rendered…