Dennis

action is brought to recover eight hundred dollars as a deposit and part payment of out *586 side lands, block 986, in the city and county of San Francisco, under a contract, in writing, set forth in the complaint, as follows:—

The complaint further alleges that the title was defective; that no deed was tendered within thirty days after the making of the agreement, or at any time, and the time was not extended by mutual consent; that plaintiff has done and performed all the conditions and terms of the contract on his part to be done and performed; and that defendant has refused to return to plaintiff said deposit of eight hundred dollars, although demanded so to do, upon September 22, 1887. Defendant, by his answer, admits the making of the contract; denies that the title is defective; admits that he never *587 tendered a deed, and that the time was not extended by mutual consent; denies that plaintiff has done and performed all the conditions and terms of the contract set forth in the said complaint on his part to be done and performed; admits that he refused to deliver the amount paid to plaintiff upon demand.

At the trial, plaintiff introduced evidence showing the pendency of…