Flagler

The parties entered into a contract dated June 16, 1916, by the terms of which plaintiff agreed to purchase from defendants an undivided two-thirds interest in certain mining claims, consisting of clay beds, for $33,333.32; $3,000 cash on execution of the contract, $2,000 six months from date thereof, and installments of $7,083.33 a year until the whole purchase price was paid, the first of such installments to be paid one year after the date of the contract, ‘1 deferred payments to draw interest at the rate of five per cent per annum, interest payable semi-annually.” The contract contained the following:

“Provided, however, that said first parties [defendants] shall proceed with due diligence to perfect and acquire title to all of the above described property from the United States Government and obtain patent thereof, or acquire title to that portion of said property located in section 9 from the Southern Pacific Railway Company, all to be acquired within one year from date hereof, and all to be done at the sole expense of said first parties except as otherwise herein provided.

“In ease said first parties shall fail to perfect or acquire title to said property within one year…