Chadbourne

Appeal from a judgment of the superior court of San Joaquin County, and from an order refusing a new trial.

This is an action to compel the specific performance of an alleged contract in writing, for the conveyance of land. The so-called contract, which is annexed to the complaint as an exhibit, is made a part thereof, and is in the words and figures following, to wit:—

Defendant demurred to the complaint upon the ground, among others, “that it does not state facts sufficient to constitute a cause of action.” The demurrer was overruled by the court below, and upon the case being tried, judgment was rendered in favor of plaintiffs, from which judgment, and the order refusing a new trial, defendant appeals.

The demurrer should have been sustained, — 1. Because the complaint does not show that Hart, or any one claiming under him, ever did anything in pursuance of said instrument, which was but a mere proposal to sell, and of which time was expressly made the essence, except the tender of payment, demand for deed, and offer to perform by plaintiffs, on the fifteenth day of August, 1889, which was within two days of two years after the date of the execution of the said offer to…