Allen

On June 21, 1889, the plaintiff, personally, and defendant, through the agency of David Stern and Son, real estate brokers, executed the following written instrument:

The plaintiff submitted the abstract of the record title to his attorney, Sidney V. Smith, who was a reputable attorney at law, and practicing as such in San Francisco, for examination, and to be accepted or rejected by him according to the above agreement. He rejected the title as to an undivided one-third part of the lot, for reasons stated by him in writing, and duly com muni *87 cated to defendant and to David Stern and Son. Thereupon plaintiff demanded a return of the one thousand dollars deposited, which in the mean time had been delivered to defendant. The defendant refused to return the deposit, tendered to plaintiff a deed for the lot, and demanded the balance of the purchase money, claiming that the title was perfect notwithstanding it had been rejected by plaintiff’s attorney. Thereupon plaintiff brought this action to recover the deposit of one thousand dollars with interest.

The judgment was in favor of the plaintiff; but, on motion of the defendant, a new trial was granted, and this appeal by…