Nicholson

— This is the defendant’s second appeal. ( 70 Cal. 608 .) It is from the judgment, and an order *619 refusing them, a new trial upon a bill of exceptions, wherein are stated certain rulings admitting evidence against the defendants, claimed to be erroneous.

The action is for the specific performance of a contract alleged to have been made in writing by Mathew Tarpey, the ancestor of the defendants. It is charged that Tarpey induced plaintiff, by fraudulent representations, to accept a deed for a portion of the premises, under the belief that it conveyed the whole. This action is, in effect, to reform the deed.

Defendants admit a parol contract for the premises conveyed by Tarpey, and deny that any other contract was made. The plaintiff claimed that the contract was executed in duplicate, each party retaining one, and that his copy was surrendered to Tarpey and destroyed when he received the deed.

The issue tried was, whether there was a written contract, and if so, as to its contents.

The alleged contract was in May, 1867. The deed was delivered and received as performance in October, 1868. Plaintiff'built a house and went upon the land to live in 1871, and claims to have had…