Vandegrift

The plaintiff was successful in this action, which was brought to recover judgment for a sum of money alleged to have been paid to the defendant on account of the purchase price of certain real property. The defendant has appealed.

[1] In consideration of the payment to him of a certain sum of money, defendant issued to plaintiff a writing, which was subscribed by him, covering the terms of purchase of a certain tract of land. This writing contained the following paragraph:

The preliminary payments were made in accordance with the terms stated and the parties met together for the purpose of completing final papers, including the execution of a mortgage. The defendant then presented a mortgage which contained various terms, including those for the compounding of interest, the payment of street liens and assessments, insurance on the property, attorney’s fees in case of foreclosure, a condition that the mortgage might determine upon default of any payments of the principal or interest, etc. The plaintiff presented and offered to execute a mortgage in the form prescribed by section 2948 of the Civil Code. This mortgage the defendant refused to accept, and announced that he would…