Goldstein

This is an action to recover damages for alleged breach of a contract to convey real estate. The findings were for defendants, and judgment was thereupon entered. This appeal is from the judgment and the order" denying plaintiff’s motion for a new trial.

There is no question as to the facts that the plaintiff paid to the defendant the sum of $600 on April 14, 1904, being the purchase price for lots 12 and 45 in block 7 in San Bruno Park, and that defendants agreed to give the plaintiff a deed to said premises. Defendants claim that they did make, execute and deliver the .deed as they agreed to do, and the court found that they did so, and that they complied with their contract. This finding is challenged as not being supported by the evidence, and we are of opinion that the contention will have to be sustained. It may be conceded that the evidence is sufficient to show that a deed was, by the previous request of plaintiff, sent to the county recorder of the county of San Mateo and placed of record, and that under the circumstances of this case the evidence was sufficient to show a delivery of the deed which was recorded, but such delivery was not a delivery of the deed called for…