Remy

Defendants take this appeal from the judgment and an order denying a new trial. This ease has been here before: 88 Cal. 537 , 26 Pac. 355 . In the opinion on the *242 first appeal the substance of the complaint and the contract sued on are fully stated. The answer denies the existence of the contract, but admits that such a contract was agreed upon, and avers that it was to have been reduced to writing and signed by all parties; that it was reduced to writing, signed and acknowledged by defendants, and sent to plaintiff, who was to sign, acknowledge, and have it recorded. This was October 9, 1888. It appears that plaintiff did not then sign it, but had it recorded. Afterward, on being informed that his signature was necessary, he did sign it, and had it rerecorded. Meantime he had taken possession of the land and commenced performance. Defendants consented to his acts, believing that he had signed the contract, but, discovering that he had not done so, they notified him in writing in June, 1889, that they would not be bound by it, and considered him a trespasser on the land. Apparently, however, although that is not made very certain by the evidence, the plaintiff had executed' it…