This is the second appeal in this case. The first appeal was from a judgment in favor of *165 plaintiff, which was reversed, and the cause was remanded for a new trial. ( 87 Cal. 49 .) On the second trial, the plaintiff again recovered judgment, and the defendant appeals from the judgment and an order denying his motion for a new trial.

The facts are sufficiently stated in the opinion of the court on the former appeal. On that appeal it was determined, as matter of law, that, by the terms of the contract in question, defendant was entitled to a good paper title of record, and was not bound to accept a title resting .on matters dehors the record; that the title tendered by plaintiff was not such as was required by the contract; that defendant was entitled to receive an actual possessio pedis of the whole lot, and was not bound to accept a constructive possession by attornment of tenants; and that, the attempted delivery of possession did not meet the requirements of the contract. The facts disclosed by the record on this appeal are, in substance, the same as those which were before the court on the former appeal; and the propositions of law there decided are therefore the law of this case, and we are not at liberty to reconsider them. It is true that nothing that was said in that opinion as to the facts could bind the court below upon the second trial, nor be conclusive now, since the rule of the law of the case has no application to questions of fact. But the evidence on the last trial appears to us to be without any material conflict, and indeed without any conflict whatever, nor can there be any question as to the inferences to be drawn from it, and it discloses a state of facts precisely the same as that on which the former decision was based. The legal effect of those facts was determined by that decision, and the case must now be determined accordingly.

The argument of respondent is practically confined to a restatement of the points discussed on the former appeal, and does not disclose any material particular in which the evidence differs from that on the former trial. Some points are suggested, as to which it is *166 claimed that the evidence is now different. Some of them are as to matters entirely immaterial; and, as to the others, we fail to discover any such difference. Respondent contends that the evidence does not now show that plaintiff “ refused ” to submit his deed for examination, or to permit it to be recorded correctly. But the evidence, viewed most favorably to plaintiff, shows now, as it showed then, that five days before the expiration of the time limited in the contract, defendant wrote to plaintiff, saying, “ If you have the deed in your possession among the papers relating to the lot, please let me have it, to show Mr. Drown, and, if necessary, have it re-recorded ”; that plaintiff called on defendant, with the deed in his hand, and stated what it was, but did not open it, or show it to defendant; that defendant asked him why he did not record it, and his reply was that he considered the original deed better than any record, but that he would give it to defendant, with the rest of the papers, on the delivery of the property; and that he thereupon took the deed away, did not record it, and had no further communication with defendant on the subject. On cross-examination, plaintiff admitted that he never proposed to do any thing with the deed, beyond delivering it to defendant when he should take the property. In view of the request contained in defendant’s letter, plaintiff’s conduct must be considered as amounting to a refusal to submit the deed for examination by counsel, or to have it recorded; and his testimony that he did not “decline” to put it on record, or to allow defendant to do so, is a mere conclusion, to which no weight can be attached.

With regard to the attempted delivery of possession, respondent claims that the evidence now shows that the persons supposed to be in occupation at the time who were not found, nor their names ascertained, turned out afterwards to be mere licensees or servants of known tenants, and who had no possession to deliver, and also that the apparent adverse occupation by Mrs. Klumpke was afterwards discovered not to be adverse. It is not *167 necessary to review the evidence on these points, though we fail to discover any substantial divergence from the former testimony. It is sufficient to say that on September 22d, when the only attempt at delivery was made, no delivery was affected. None of the tenants vacated; and Mrs. Klumpke, by her tenant, remained in the actual possession of the strip in the rear. At no time did plaintiff tender to defendant the actual, present possession of the lot described in the contract. Defendant, having on the day of the maturity of the contract tendered full performance on his part, was not bound to repeat his offer, and no tender was thereafter made by plaintiff. Indeed, though time was not originally of the essence of the contract, it was made so.by the demand of defendant, and the failure of plaintiff to comply with it, and a subsequent tender by plaintiff, would have been unavailing.

Respondent also claims that the proof shows a waiver by defendant of the delivery of actual possession. The evidence relied on for this purpose was before the court on the- former appeal, but it is contended that, as the allegation of waiver was inserted in the pleadings since the former trial, the question is now open. We see nothing in the facts relied on from which any waiver can be inferred. They do not indicate any intention on defendant’s part -to waive any thing. They consist solely of transactions with third parties. Plaintiff is not shown to have known of them, or to have acted upon them; defendant received no consideration for any waiver; and, lastly, the provisions of the written contract could not be altered by an unexecuted oral agreement, if one had been made. (Civ. Code, sec. 1698.)

The court below found that the grounds upon which defendant based his refusal to take the lot were but pretenses—mere excuses for retiring from the bargain— and were not made in good faith. We fail to find the slightest evidence to support that finding, or to impugn defendant’s entire good faith. But, if the fact were as *168 found, it would be immaterial; defendant was entitled to insist strictly on the contract, and his motives for doing so cannot be inquired into.

The findings as to the controverted matters are, therefore, unsupported by the evidence, and respondent, indeed, admits that some of them are so. A new trial must therefore be granted.

. It is not necessary to notice all the assignments of error in law. The certificate of acknowledgment to the deed from Agard to Perrie was sufficient, and the existence of an erasure not shown, otherwise than by defendant’s objection. The testimony of Moxley as to conversations with Hansen was stricken out, and the exception to its admission, therefore, cannot he considered. The testimony of Christie showed that the witness Aspden was out of the jurisdiction of the court, and the testimony of the latter, taken on the former trial, was admissible. (Hicks v. Lovell 64 Cal. 22 ; 49 Am. Rep. 679 .) The other assignments do not require notice. The judgment and- order denying a new trial are reversed, and the cause remanded for a new trial.

Harrison, J., concurred.