Glock

I concur in reversing the judgment and order appealed from upon the following grounds: The plaintiff and the defendant entered into a written agreement, February 21, 1891, whereby the defendant agreed that “in consideration of, subject to, and upon the full and due performance of the covenants and agreements on the part of the party of the-second part hereinbefore contained,” it would convey to the-plaintiff a certain tract of land; and whereby the plaintiff in consideration of said agreement agreed to pay to the defendant the: sum of six hundred and twenty-five dollars, as follows: one hundred and twenty-five dollars upon the execution and delivery of the agreement, one hundred and twenty-five dollars on or before the twenty-first day of February, 1892, and one hundred and twenty-five dollars on or before the twenty-first day of each succeeding February, the last of said payments to be made on or before the twenty-first day of February, 1895, with interest at the. rate of six per cent, payable annually on the twenty-first day of February of each year on each and all deferred payments. The agreement also contained the following provisions: “It is expressly understood and agreed…

This action was brought to recover from the corporation defendant moneys paid by plaintiff on a contract for the purchase and sale of a tract of land situated in the then county of Fresno, now in the county of Madera.

Plaintiff had judgment, and defendant appeals therefrom and from the order denying its motion for a new trial. The appeal is supported by a bill of exceptions. The facts briefly stated are the following:

On the twenty-first day of February, 1891, the defendant, as party of the first part, entered into a written agreement with the plaintiff, as the party of the second part, whereby said party •of the first part agreed that upon the performance of the covenants to be kept by the plaintiff it would convey to him a tract •of five acres of land situate in the county of Fresno, and certain water rights, all of which are fully described. Plaintiff was to pay therefor six hundred and twenty-five dollars, as follows: One hundred and twenty-five dollars down, the receipt whereof *3 was acknowledged; one hundred and twenty-five dollars on or before February 21, 1892, and a like sum annually until and including February 21, 1895, with interest payable annually on all deferred…