Sherwood

Plaintiff sued for the specific performance of a written contract for the sale of real property. The cause was tried before the court, sitting without a jury, and resulted in a judgment for plaintiff from which the defendant has appealed upon a bill of exceptions.

The complaint alleged the execution of the contract wherein the defendant agreed to sell certain lots of land to the plaintiff for the sum of $2,200. The contract was set out in haec verba as an exhibit to the complaint. It was further pleaded that the purchase price named was fair and adequate, and that, on July 30, 1927, the plaintiff tendered to the defendant the sum of $356.89, which was the full amount due on account of the purchase price, interest and other charges. At the same time demand for a conveyance was made upon the defendant and refused.

, The defendant demurred to the complaint both generally and specially on the ground that it did not appear that plain tiff had performed the contract according to its terms or that the contract had matured on July 30, 1927, or at the commencement of the action. The demurrer was overruled and the defendant answered setting up the issue that plaintiff failed to perform in…