Dean

For the second time this case comes to this court upon appeal by the defendant from a judgment in favor of the plaintiff.

The action was for damages for the alleged breach of a contract to purchase real estate. Upon the first appeal the judgment was reversed because the plaintiff failed to show that she had been damaged by the alleged breach of the contract in the sum sued for or in any other sum.

The plaintiff’s cause of action rests upon allegations of fact which are substantially as follows: The defendant, in consideration of the sum of eight hundred dollars, executed to plaintiff a deed dated October 31, 1908, purporting to convey to plaintiff the defendant’s undivided one-half interest in certain real property situate in the county of Santa Cruz. The plaintiff has ever since been the owner in fee of the interest so conveyed to her free and clear of all encumbrances. Contemporaneously with the execution of the deed referred to the defendant made and delivered to plaintiff the following memorandum of agreement:

“Santa Cruz, Cal., October 31, 1908.

“This is to certify that I have this day sold to Henrietta S. Dean a one-half interest in a certain tract of land; Now…