Klegman

This action was brought by plaintiff to recover damages for the alleged breach by defendant of a certain contract to exchange real properties. The case was tried without a jury, and the trial court awarded plaintiff damages in the sum of $5,000. A motion for a new trial was made and denied. Defendant presents this appeal.

Plaintiff and defendant through the same agent signed and delivered separate exchange agreements. Plaintiff was to exchange certain described real property in Oakland for real property of defendant in the same city, and by the terms of the exchange agreement and as an additional consideration the defendant was to transfer to plaintiff a certain note and deed of trust covering property in Madera County. In the contract of exchange it was provided that plaintiff was to trade his property subject to a first encumbrance in the sum of $20,000, bearing interest at the rate of six per cent per annum and due two years from date; that in addition to this first encumbrance the defendant was to execute to plaintiff a note and deed of trust secured by the same property in the sum of $2,500, which should be a second encumbrance.

It plainly appears from the agreements of…