Moore

This is an appeal by plaintiff from a judgment in favor of the defendant in an action for damages for refusal to perform an agreement to transfer to the plaintiff a certain business, its goodwill and the personal property used in connection therewith in consideration of the conveyance by plaintiff of a lot of land with the improvements thereon.

The plaintiff’s property was described in the contract of exchange as follows: “That certain lot, 37.6x80, situated on the northeasterly corner of Ninth street and Hayes street, in the city of San Jose, improved with a frame building, containing four apartment flats of 4 rooms and bath each, partially furnished, commonly known and designated as 66 and 70 South Ninth street and 407 and 409 Hayes street, in the city of San Jose.” At the same time the defendant was the owner of a certain business conducted in the city of Oakland. On September 13, 1918, these parties agreed, in writing, to an exchange of their respective properties. It is admitted that the plaintiff’s lot is five feet less in depth than stated in the agreement, and that the apartments in the building situated thereon instead of containing four rooms and bath each were each…