Pellow

The trial court gave the plaintiff judgment for moneys alleged to be due on a written instrument. From that judgment the defendant has appealed and has brought up the judgment-roll. On the fifteenth day of October, 1924, the plaintiff deeded to the defendant lands near Stockton in exchange for lands at Columbus, Ohio, and as a part of the consideration for the exchange defendant gave to plaintiff twenty-five shares of stock in Lampron Bakery Company, a corporation, and at the same time the defendant executed and delivered a writing in words and figures as follows, to wit:

On April 17,1928, the plaintiff commenced this action. During the trial in the lower court the defendant contended, and in his briefs in this court the defendant contends, that the instrument sued on was an option and that the plaintiff waived his rights by not demanding performance on the date of the expiration, that is, two years after October 15, 1924. (25 Cal. Jur. 526.) The plaintiff concedes that the contention of the defendant is sound if the instrument is merely an option, but in that behalf he contends that it is an extension of credit and not an option. In support of his position he cites and relies on…