Mooradian

Two actions were, by stipulation, tried together, one brought by the appellant against respondent for the cancellation of a promissory note, the second by respondent against appellant for collection of the same note. Respondent obtained judgment in both cases. In his answer to the second case appellant alleged that the note had been taken by him in payment for the first installment of the purchase price of a piece of property which he agreed to sell to the respondent; that an agreement of sale was executed by both parties wherein it was agreed that the note should be canceled and declared void; that respondent thereafter entered into possession of the premises, but had failed to pay the interest due on the first day of December, 1920, and had thereafter abandoned the property.

The trial court found that the agreement which was executed by the parties was merely a preliminary agreement which expressly called for a final agreement and which contemplated further negotiations for the purpose of agreeing upon the terms, conditions, and provisions to be included in the final contract; that this preliminary agreement was not delivered to respondent but was by the appellant delivered to…