Fountain

Two cases with the above title were tried together and similar judgments entered in both cases. By stipulation the motion for a new trial and the appeal from the judgment and from the order denying a new trial are applicable to both.

As the facts are in all material respects similar, it is only necessary to discuss one case, which will be that first set out in the transcript.

The complaint in that case, after averring the incorporation of the defendant, sets out a contract between the parties in full. That contract, dated August 7, 1888, states that defendant agrees to sell to plaintiffs 53.09 acres of land in San Bernardino County for the sum of $6,636.25, with interest at the rate of eight per cent per annum, to be paid in installments, the first installment of which, $2,212.09, was payable one year after date, and the last, $2,300.08, including interest, August 7,1891.

By the same instrument plaintiffs agree that, as part consideration for the purchase of said land, they will, on or before October 15, 1888, commence to clear off said land and with all reasonable diligence proceed with said clearing until said land is entirely cleared off, and plow at least one half of said…