Merrill

This is an action by the respondent, vendee, to recover back a sum of money paid to the appellant, vendor, as a partial payment upon the purchase price of a certain tract of realty under a contract of sale. Respondent made no tender of the balance due, and demanded no deed, but alleged in her complaint that defendant rescinded the contract, and she bases her right of recovery upon the alleged acts constituting the rescission. She recovered judgment in the trial court, and this appeal is taken from that order, and from the order denying a motion for a new trial.

This case has once been before the court ( 95 Cal. 334 ), upon an appeal involving the sufficiency of the complaint in stating a cause of action. In the decision of the court in that case it was decided that, while the complaint was not perfect as an example of correct pleading, still sufficient was stated therein to constitute a cause of action for the recovery of the money paid the defendant, and this view was taken by the court upon the ground that the conduct of defendant was such as to put him in default under the contract, and that such default gave' plaintiff an immediate right of action to recover the money paid.…