Henry

These two actions were tried separately and they are briefed separately on the appeal. They are, however, companion eases. The evidence on the two trials was similar and the points which will dispose of the appeal are exactly the same. Such statement of facts as we find it necessary to make will apply in substance to both cases, although we shall frame our language, for clarity and convenience, as if only the first of the two, number 3846, were involved.

One J. F. McCloskey entered into a written agreement with defendant, dated June 5, 1918, whereby McCloskey agreed to sell and defendant agreed to buy a parcel of real property. The following portions of this agreement are material to the present controversy: “The purchase price . . . is $51,300.00, . . . which” Jones “agrees to pay ... as follows: Five Thousand Dollars on the date hereof, receipt whereof ... is hereby acknowledged: Twenty-three Thousand Eight Hundred Dollars,” as early, under certain conditions, as November 1, 1918, but not later than January 1, 1919; “and the balance of said purchase price, to wit: The sum of Twenty-two Thousand Five Hundred Dollars by note and mortgage as hereinafter stipulated. Upon the…