Moser

The defendant, Orin A. Pearce, appeals from a judgment rendered against him in an action for the specific performance of an agreement relating to the purchase and sale of two groups of lots. The grounds urged for reversal are that the amended complaint and the evidence are insufficient to support a judgment for specific performance and that the form of judgment rendered is erroneous.

The plaintiffs, R. L. and Carliss Moser, were purchasing the lots in question from the Bank of Italy under separate executory contracts of sale, upon which there was a balance due of less than $3,000 on the first group, and of less than $4,500 on the second group. In that situation and in March, 1929, they entered into an agreement with defendant whereby they agreed to sell and defendant agreed to buy the first group for $3,500 and the second group for $5,000. In furtherance of such agreement defendant paid to plaintiffs a deposit of $500 on each group, evidenced by two so-called sales deposit receipts, identical in form except as to amounts, descriptions of the property, etc. After acknowledging the payment of the deposit, each receipt provided, among other things, that upon the payment of the…