Samuel

— This appeal is from the judgment, but was taken within sixty days after the rendition and entry thereof.

The action is brought to recover money due upon a contract for the sale of land. The plaintiff, who is the vendor, avers *407 that he has performed all the conditions of the contract on his part, and that on the seventeenth day of January, 1890, the defendant refused to accept performance on his part, and notified plaintiff of his refusal to accept performance on the part of plaintiff and still does refuse to accept performance.

These allegations are specifically deñied in the answer. There was, at the trial, no attempt made to prove the alleged waiver of an offer to perform, or that defendant had refused to accept performance on the part of plaintiff, or had notified him to that effect. In lieu of the waiver alleged, plaintiff proved that he prepared a deed and was ready to deliver it, and that defendant was a resident of Austin, Minnesota, and plaintiff had been told in Los Angeles that defendant had no residence in this state.

Section 1489 of the Civil Code provides that, in the absence of an express provision to the contrary, an offer of performance may be made:—

It…