Uhlhorn

This is an action for damages for breach of contract.

July 9, 1887, and prior thereto, the decedent was the owner of twelve thousand eight hundred acres of land in Fresno County. On the date mentioned he gave to P. Rothermal a writing (exhibit A), by which he was to have the sole privilege, for a certain time, of selling the land referred to, upon certain terms. The material part of the writing is as follows:—

*187 July 30, 1887, Rothermal contracted to sell the same land to H. V. Burner or order for the sum of forty-four thousand eight hundred dollars, payable in the following manner: Two thousand dollars were to be deposited by Burner in the First National Bank of San Francisco, there to remain until September 1, 1887, when Burner was to pay the same to Rothermal, through the bank, together with the further sum of thirteen thousand dollars, and upon such payment being made, the latter was to execute a deed conveying a perfect title to “ said Burner or his order,” and the latter was in return to execute a mortgage on the same land in favor of Bother in al to secure the remaining twenty-nine thousand dollars of the purchase price, which was to be paid, one half in one year, and…