Hammond

Judgment went for plaintiff in this ease and a new trial was ordered. The present appeal is from that order. A full statement of the facts giving rise to this litigation may he found in Hammond v. Cailleaud, 111 Cal. 206 , 52 Am. St. Rep. 167 , 43 Pac. 607 . The material facts to be here considered are these: Defendant purchased certain real estate at public auction in proceedings for partition. He paid ten per cent at the time of the sale, and upon confirmation of the sale by the court refused to take the deed, and pay the balance of the purchase price. Thereupon a second sale was ordered by the court, and made to the other parties, and the present action is brought to recover from the defendant the *413 difference between the respective amounts of the first and second purchase price. It was decided upon the former appeal in this ease (Hammond v. Cailleaud, supra) that, in order to establish a liability against this defendant, it must be shown that the second sale was held, in all substantial respects, upon the same terms and conditions as the first sale. It was further held that, notwithstanding the real estate was confirmed to defendant, under his purchase, against his…