Chadbourne

This is an appeal by defendant from the judgment and an order refusing a new trial. The case has been here before, and is reported: 88 Cal. 636 , 26 Pac. 529 . The action is based upon an offer on the part of the defendant to sell certain land, which offer is set out in full in the report of the last appeal. On that appeal it was held that the complaint was defective, and that a demurrer interposed to it should have been sustained, because, it is said, the offer had not been accepted within a reasonable time, nor was there any excuse shown for delay. It is then said: “As there is no allegation in the complaint showing that the agreement of Hart to keep the buildings insured, and to assign to the defendant the policies of insurance, as provided by the terms of said instrument—which was the only consideration of the offer *536 to sell—was ever performed or excused, we advise that the judgment and order be reversed, with directions to the court below to sustain the demurrer.” The judgment was reversed, therefore, partly because it was not averred that Hart had insured the buildings. The point was certainly presented by the demurrer. It now appears in the proof that the buildings were…