Griesemer

This is an appeal from an order denying defendants’ motion for a new trial in an action to recover money paid as a deposit on a contract for the purchase of land.

On the twenty-fourth day of October, 1907, Hammond & Hammond, copartners, as agents of the defendant, F. S. Kelly, entered into a contract with the plaintiff, whereby the latter was to purchase a certain parcel of land situated in Alameda county and pay therefor the sum of $13,500. At the time of the execution of the contract the plaintiff paid said agents the sum of $1,350 on account of and as a deposit to secure the sale of said land. The terms of sale were as follows: “Cash $6,000, balance flat loan of $7,500 at seven per cent net . . . 60 days are to be allowed, for legal search of title. If it is not found good, the deposit ... is to be returned; if the title is found good and the sale is not consummated in accordance with the above terms, the deposit is to be forfeited.”

The time allowed to plaintiff for examining title was extended by mutual consent up to January 29, 1908.

The contract did not call for the furnishing of an abstract of title or certificate of search. The uncontradicted testimony, however, of Mr.…