Long

From a judgment in favor of plaintiff’s intestate, and from an order denying defendants’ motion for a new trial, they appeal. The appeal from the judgment has by this court been dismissed (Williams v. Long, 130 Cal. 58 ), and there remains for consideration only the order denying the motion for a new trial. Plaintiff’s intestate, Henry Williams, who owned the claim, and the defendant Long, entered into an agreement for its sale and purchase, the contract providing, among other things, for a payment, though not the final one, at a given time, of ten thousand dollars. Williams executed a deed of the property in Long’s favor, which was deposited with the California Safe Deposit and Trust Company in escrow, to be delivered when the final payments for the claim were made. The contract provided, also, that: “It is also understood and agreed, should default be made in any of the said payments, the property shall revert back, with all improvements made, to the party [Williams] of the first part.” Long went into possession of the mine, assigned his contract to the other defendant, the Gagnere Mining Company, failed to make payment as stipulated, and the plaintiff’s intestate brought this…