Frank

On June 4, 1895, the persons now parties to this action entered into a contract in writing whereby plaintiff agreed to sell, and defendant agreed to buy, certain land in Santa Clara county. By the terms of the contract, credit was allowed for the greater part of the purchase price until September 15, 1897; but it was provided that defendant should have immediate possession of the land, and pay plaintiff, as rental for the same, the sum of $600 per annum pending completion of the purchase—the second annual installment of rent to be payable on September 4, 1896. It was further stipulated that time was of the essence of the contract, and that if defendant should fail to make the payments provided for when due, or within thirty days thereafter, then plaintiff might.retake possession of the premises, and the contract should be void. Defendant was let into possession of the land as agreed. On October 31, 1896, plaintiff commenced this action to oust him therefrom. She demanded, *415 also, judgment for the value of the use and occupation of the premises at the rate of $1,000 per year after June 4, 1896. In hte answer defendant pleaded said contract with plaintiff, and averred that he…