Vassault

— This is an action to compel the specific performance of a written contract for the conveyance of a lot of land in the city of San Francisco. The defendant filed an answer to the complaint, and on the trial the plaintiff moved for a judgment against the defendant on the pleadings. A similar motion was made by the defendant for judgment against the plaintiff, both of which motions were heard together, and the plaintiff’s motion was denied, and the defendant’s granted. From this ruling the plaintiff has appealed.

The written contract is set out in the complaint and bears date April 21, 1868; but the complaint avers that it was, in fact, executed on the 22d of April. The contract states that on that day the defendant had sold to the plaintiff the lot in contest, for the price of twelve thousand dollars in gold coin, of which the defendant had received fifty dollars as part payment; that the sale was “subject to a search of, and an approval of the title,” and that if the title was rejected as bad, the defendant was to refund the fifty dollars advanced, but if the title was approved, the defendant was to convey the property, on the payment of the remainder of the purchase money; and…