
    [No. 6,764.
    Department One.]
    AUGUST FRIXEN v. CRISANTO CASTRO et al.
    Specific Performance—Parol Contract to Convey Land—Part Performance—Vendor and Vendee—Complaint.—In an action by a vendee for the specific performance of a contract to convey land, the court found a parol contract and gave judgment for the plaintiff.
    
      Held, That the complaint was insufficient in not alleging a readiness and willingness on the part of the plaintiff to pay the balance of the purchase price, and that it was also defective in the averments respecting part performance.
    Appeal from a judgment for the plaintiff in the Twentieth District Court, County of Santa Clara. Beldeh, J.
    The complaint as amended contained two counts, the first of which alleged that the defendants “ promised and agreed to sell and convey to the plaintiff, etc.;” and the second, that the defendants “promised and agreed in writing to sell and convey to the plaintiff.” The first count also alleged that “ plaintiff took possession of said premises immediately after said agreement was made, and has ever since retained the exclusive possession thereof.” In other respects, both counts were similar, and alleged in effect that the purchase price was one hundred dollars, and that the plaintiff paid on the contract eighty-nine dollars, and tendered to the defendant the balance; and that defendants refused to convey, etc., but there was no offer to pay the balance of the purchase money, or any allegation that the plaintiff was ready and willing to do so.
    The Court found that the contract was by parol, and in other respects found the allegations of the complaint to be true.
    
      Houghton & Reynolds, for Appellant.
    D. M. Demas, for Respondent.
   The Court:

It is essential that the plaintiff’s pleadings show a readiness and willingness on his part to pay the balance of the purchase price for the land which he seeks to compel the defendant to convey to him. (Fry on Spec. Per., § 608; Waterman on Spec. Per., § 96.) In the complaint in this case as amended, there is no such showing.

The complaint is also defective, to say the least, in the averments respecting part performance.

Judgment reversed and cause remanded with directions to sustain the demurrer to the complaint as amended, with leave to the plaintiff to amend in such particulars as he may be advised. -  