Gondolfo

This appeal is from the judgment and the order denying plaintiff’s motion for a new trial. The complaint alleges that the defendant agreed to sell to plaintiff an mdivided one-fifth interest in and to certain vegetable gardens known as the “Stagnaro Gardens,” near the Six-mile House in the city and county of San Francisco, for the sum of $300, and the plaintiff paid to defendant $100 on account of such purchase price. That plaintiff has tendered the balance of the purchase price, but that defendant has at all times refused to accept the balance of $200, or to convey the interest to plaintiff as he agreed. Judgment is prayed for $1,500 for breach of the alleged contract.

The answer alleges by way of affirmative defense that at the time of the agreement to sell, the said vegetable gardens were partnership property and owned by the following partners, to wit: Emanuele Stagnaro, Giovanni Queirolo, B. Costa, Giacomo Bargagliotti, Fortunato Gotelli, Giovanni Garbarino, Davide Gondolfo, Stef ano Ghiorso and Marco Ghiesa. That the agreement to sell was made upon the express condition and understanding that the other partners should consent and agree to the said sale, or it should not be…