Folgar

*317 The opinion of the Court was delivered by

The complainant in this case alleges that Benjamin B. Buckelew made a contract with George B. Elkins, on the 16th of May, 1851, to sell and convey to him a certain lot of land in the city of San Francisco, and the hull of a certain store ship theron, including tackle, &c.

The condition of this agreement to convey was, that Elkins should pay the sum of $2000 on the 20th of May, 1851, $5,500 on the 1st of June, and to execute two promissory notes, each for the sum of $3,500, payable, respectively, on the 15th and 31st days of June, (1851.) On the 22d day of May, (1851,) Elkins and Buckelew agreed with Folger, that he should become the purchaser of the property in the place of Elkins,- upon the payment of $2000 on that day, as upon the terms of the first agreement, fixing at the time the dates at which the payments should be made.

The second agreement was in the nature of a substitute for the first, and renewed it in the name of Folger, and was signed by all the parties, and was obligatory. Buckelew received the $2000. The day fixed for the payment of the next sum of $5,500, and the execution of other parts of the contract, fell on…