if he does not, he loses his right of election. He cannot wait till the next day: Rewrick v. Goldstone, 48 Cal. 554. 4. Demand and Refusal-It has been held to be necessary either to tender a deed for signature, or to wait a reasonable time for its preparation by the vendor, and make a second demand: Lutweller v. Linnell, 12 Barb. 512; Hackett v. Huson, 3 Wend. 250; Fuller v. Hubbard, 6 Cow. 17; see, however, Pearsoll v. Frazer, 14 Barb. 564; where it is asserted that the above rule is a rule of evidence merely, and need not be set forth specially. As to cases in which a demand is necessary, see Bruce v. Tilson, 25 N. Y. 194. But if the vendor, on the first demand, positively refuse to convey, nothing more need be done: Carpenter v. Brown, 6 Barb. 147; Driggs v. Dwight, 17 Wend. 74. That an averment of demand and tender is necessary, see Beecher v. Conradt, 13 N. Y. 110; Lester v. Jewett. 11 N. Y. 453. 5. Description of Property.-He who sells property on a description given by himself, is bound in equity to make good that description; and if it be erroneous in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance: McFerran v. Taylor, 3 Cranch, 270. 6. Interpretation of Contract.-In Iowa, the law will construe a contract to be a mortgage, rather than a conditional sale; still the intention of the parties to the contract is the true test: Hughes v. Sheaff, 19 Iowa, 335. 7. Performance of Conditions.-Where A. sold a lot of land to B. and delivered possession, and in a written contract respecting the same it was stipulated, among other things, that in the event that B. should be dispossessed by legal judgment at any time within three years, A. should pay back to B. $2,000; and should suit be brought against B. for the lot, then B. should notify A. of it, in order to enable him to assist in the defense of the title: Held, that the giving of the notice by B. to A. of the institution of suit against B. for the lot, was indispensable to enable B. to recover of A. on In a suit on such contract, B. should aver that he had been evicted after notice to A. The payment of the money is dependent on this fact: Id. such contract: Bensley v. Atwill, 12 Cal. 231. 8. That on Performance .... Averment of Excuse for Non-Performance.- performance had arrived, the defendant falsely and fraudulently represented 9. Sale in Writing."-The party making an allegation in a pleading, that the sale of a mining claim, under which he claims title, was in writing, is not thereby precluded from proving that the sale was a verbal one: Patterson v. Keystone Mining Co., 30 Cal. 360. 10. Writing-Presumption of.-If a complaint avers that a contract was made for the sale of real estate, the presumption is that it was in writing: McDonald v. Mission View H. A., 51 Cal. 210. A finding of fact in such case need not state that the contract was in writing: Id. No. 300. ii. The Same-For Damage for not Executing Conveyance, and for Repayment of Purchase Money, [TITLE.] the plaintiff and defendant entered into an agreement under their hands and seals, of which the following is a copy [insert copy]. [Or, I. That on the... .day of.. ., 187., 187, at......, the defendant agreed with the plaintiff, that in consideration of the sum of. . . . . . . . dollars, the receipt whereof was acknowledged by the defendant in said agreement, in part payment, and of the further sum of...... dollars, for which defendant agreed to take a note secured by a mortgage on the premises hereinafter described, said note and mortgage to be payable in one year from the...... day of....., 187., and to bear interest at ten per cent. per annum, the defendant agreed to sell to the plaintiff, and the plaintiff agreed to buy from the defendant, the farm, then the residence of the defendant, in the town of... ..., county of................, and State of... acres or thereabouts, for the sum of........ dollars per acre, and that the defendant would, on the said... ... day of......, 187., at the ....office, in........city, between the hours of..... o'clock in the morning and........o'clock in the evening, on receiving said note and mortgage, execute to the plaintiff a good and sufficient conveyance of the said premises, free from all incumbrances, and he further agreed to pay to this plaintiff, on failure of performance, . . . . . . . . dollars, liquidated damages. And the plaintiff agreed that he would, at the time and place above mentioned, on the execution of said conveyence, make, execute, and deliver to the defendant the note and mortgage aforesaid.] ........ containing.. 187., at. at...... II. That on the........ day of.. [day and place agreed], the plaintiff demanded the conveyance of the said property from the defendant, and tendered to the defendant a note and mortgage made and executed pursuant to the agreement, and was ready and willing, and offered to the defendant, to make and execute the note and mortgage agreed on, and to deliver the same to the defend ant, and duly to perform all his agreements under the said covenant, upon the like performance by the defendant, and otherwise has duly performed all the conditions of said agreement on his part. III. That on the....day of... ..., 187., at.... ... the plaintiff again demanded such conveyance [or that the defendant refused to execute the same]. IV. That the defendant has not executed any conveyance of the said property to the plaintiff, nor has he repaid to the plaintiff the said....... dollars paid by this plaintiff to the defendant in part payment for said property. [Demand of Judgment.] No. 301. iii. Vendor against Purchaser for Breach of Agreement to Purchase. [TITLE.] The plaintiff complains, and alleges: I. That on the ...... day of in the county of 187., at.... and State of the plaintiff and defendant entered into an agreement, under their hands and seals, of which the following is a copy [insert copy]. ... 187., at II. That on the day of the plaintiff was the owner in fee-simple of the said property, and the same was free from all incumbrances, as was made to appear to the defendant, and at said time and place he tendered to the defendant a sufficient deed of conveyance of the same [or was ready and willing and offered to convey the same to the defendant by a sufficient deed], on the payment by the defendant of the said sum. III. That the defendant has not paid the same. [Demand of Judgment.] 11. Admission.-Assumpsit for the value of land conveyed by plaintiff to defendant, in consideration of an oral promise by the latter to convey other land worth $2,000 to the plaintiff, which promise defendant now refuses to perform: Held, that defendant's agreement, and the value of the land to have been conveyed by him, might be proved as an admission of the value of the land which he received: Bassett v. Bassett, 55 Me. 127. 12. Averment of Excuse for Non-Performance. That on the ..... day of ............, 187., and before the time for the plaintiff to perform the conditions thereof on his part, the defendant gave notice in writing to the plaintiff that he had determined not to take the land; and the defendant ..... abandoned the agreement, and ever since wholly failed to perform it, to the plaintiff's damage dollars: North v. Pepper, 21 Wend. 636. A refusal before the time specified, if relied on as an excuse for non-performance, must be alleged to have been addressed to the party alleging: Traver v. Halsted, 23 Wend. 66. 13. Rescission of Contract.-In order to rescind a contract for the sale of land, on the ground that the vendor cannot perform it, having no title, it is necessary to aver and show an outstanding title in another: Riddell v. Blake, 4 Cal. 264. 14. Title.—If the true owner conveys the property by any name, the conveyance as between the grantor and grantee will transfer the title: Fallon v. Kehoe, 38 Cal. 44; citing Middleton v. Findla, 25 Cal. 80. No. 302. iv. The Same-For not Fulfilling Agreement, and for Deficiency on Resale. [TITLE.] The plaintiff complains, and alleges: I. That this plaintiff was the owner of four fifty-vara lots, situated in the western addition of the city and county of ., to wit, Lots 1, 2, 5 and 6, in block No. .....; that he put them up for sale at auction, at the auction rooms of C. D. & Co., No. street, in the ... day of ... , 187., commencement of the sale, as a part of the terms of sale, that ten per cent. of the purchase money was, on the day of sale, to be paid by the purchaser to the auctioneers C. D. & Co., and that if any purchaser failed to make such payment, the lots would be resold, and the purchaser be charged with the deficiency. II. That at the said sale, A. B., the defendant, bid for and became the purchaser of each and all of the said lots, for the price of........ dollars, gold coin, for each lot. III. That the said defendant did not, on the day of such sale, or at any other time, pay ten per cent., nor any part of the price bid, nor the purchase money, nor any part thereof. IV. That in consequence of such neglect of payment, and after notice given to the defendant of the time and place when and where the said lots should be resold on his account, and that he would be charged with the deficiency, the said lots were put up to resale, and resold at the price of...... .dollars for each lot, making a deficiency of .dollars upon the said four lots. V. That the defendant has not paid said deficiency. [Demand of Judgment.] 15. Rights of Vendee.-When the property has been resold, the surplus beyond the purchase money due belongs to the vendee: Gouldin v. Buckelew, 4 Cal. 107. the plaintiff and the said A. B. entered into a contract in writing, under their respective hands, of which the following is a copy [copy agreement]. II. That on the.... day of.... 187., at the said A. B. died, leaving a last will and testament, by which he devised the said property as follows [set forth devise]. III. That the defendant was appointed by said will as the executor of the said A. B., and by an order of the Probate Court of the county of.... in this State, made on 187, said will was admitted to the....day of ......... probate, and the defendant was then appointed and duly qualified as such executor. IV. That on the........ day of 187., the plaintiff offered to the defendant to convey the premises to him and the said [other devisees], and fully to perform said contract on his part, and requested the defendant to pay the money for the same, pursuant to the contract. V. That the defendant then wholly refused to do so. [Demand of Judgment.] No. 304. vi. Vendor against Purchaser, for Real Property Contracted to be sold, but [TITLE.] not Conveyed. The plaintiff complains, and alleges: 187., at.. I. That on the......day of........, 187., the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant, and that the defendant should purchase from the plaintiff [the house and lot No. ....street], for........ dollars. The following ..... is a copy of said agreement [insert copy]. II. That on the . . . . day of. . . . . 187., at .. the plaintiff tendered [or was ready and willing, and offered |