Spencer

This is an action to enforce specific performance of a contract to convey real estate. Judgment was rendered for plaintiff, from which, and an order denying his motion for a new trial, defendant prosecutes this appeal.

The contract, dated November 9, 1905, is set out in ltaec verba in the complaint. The consideration for the purchase was $1,350. The sum of $50 was paid upon execution of the contract, which provided that $100 was to be paid upon the execution and delivery of a good and sufficient deed, and $600 on or before one year from date, and $600 on or before two years from date. It was also provided that if the remaining payments be not made according to this agreement and contract, the above-mentioned deposit of $50 should be forfeited without recourse. The contract also contained the following clause: 1 ‘ This sale is on the condition that the planing-mill and appurtenances shall be moved from the north side of Center street within 30 days. ’ ’

Plaintiff alleges that on December 7, 1905, he paid the $100 mentioned in the contract and duly performed on his part all of the conditions of said contract, but that defendant refuses to make the conveyance of the property in…