McCroskey

The plaintiff made an agreement in writing with the defendants and two others on the 25th of August, 1887, to sell and convey to them certain real estate in Hollister for the sum of $6,500, of which $650 was to be paid at that date, and the balance within sixty *457 days thereafter. The agreement also contained the following clause: “And said McOroskey, upon receiving said payments, agrees to make a deed of said property to said persons, and convey title to said premises to them, and if said persons fail to make said payments as herein named, they shall forfeit all right to said property and all right to all payments made herein. If said title is not sufficient and good, then said money paid shall be refunded.” Instead of paying the $650 in money upon that day, the defendants, for themselves and their associates, executed to the plaintiff their promissory note for $650, payable one day after date. After the execution of the agreement, the parties thereto had some negotiations regarding the examination of the title to the property, which resulted in. the vendees being dissatisfied therewith, and a demand by the defendants that the plaintiff surrender to them their note. This the…