Poheim

Plaintiff brought this action to recover the sum of $500, paid by his assignor to defendant, as a deposit or first payment on a contract to buy a certain piece of land for the total sum of $14,625. Judgment went for defendant, and this appeal is by plaintiff from such judgment, and was taken within sixty days from the entry thereof.

The complaint is in two counts, each of which was demurred to as not stating a cause of action. The demurrer was sustained as to the second count, and appellant claims that the ■court erred in so doing.

The second count of the complaint is framed upon the theory that the plaintiff, as the assignee of the vendee, had xescinded the contract because of a failure of consideration in that the title of plaintiff was not a merchantable title, in that it was not ascertainable from the public records of the city and county of San Francisco. Attached to the complaint, and made a part of the second count thereof, is the written contract entered into between plaintiff’s assignor and defendant. This contract provides that “Thirty days from date are allowed to examine title to said property, which examination is to be made by the California Title Insurance and…