Reed

Plaintiff commenced this action to recover a deposit of two thousand five hundred dollars paid on account of the purchase price of certain real property situated in the city of Oakland. Plaintiff had judgment and defendants’ motion for a new trial was denied. Appeals have been taken from the judgment and from the order denying the motion for a new trial.

The nature of the contract and the issues presented in the pleadings sufficiently appear from the findings of the trial court.

After the contract was executed, which is dated November 14,1906, defendant, Alice S. Blake, died, and defendant, William Vincent Witcher, Jr., was appointed executor of her will and estate. Plaintiff presented a claim to said executor for the amount in this action mentioned which was rejécted. No point arises as to the sufficiency of the steps thus taken by plaintiff. At the close of the evidence plaintiff, by leave of the court, made certain amendments to his complaint to conform to the evidence.

The court found: 1. That the foregoing contract was entered into by plaintiff and the other signers of the contract, “wherein and whereby plaintiff agreed to buy .and said defendants agreed to sell to…