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have been entitled to delivery of the contract, and the performance of other covenants therein as stipulated would have entitled them to performance on the part of the plaintiff.

It is further claimed that plaintiff, in order to have placed the defendants in default, should have tendered a deed before declaring a forfeiture, in support of which Cleary v. Folger, 84 Cal. 316, [18 Am. St. Rep. 187, 24 Pac, 280], is cited. It appears from the contract that as payments were made to the Citizens' National Bank deeds to specified parts of the property were to be delivered to defendants, one of which deeds, as provided in the contract, to a piece of land desig. nated as Tract A, was to be delivered, together with the contract, upon the payment of the forty-five thousand dollars. This deed was deposited with the Citizens' National Bank in escrow, to be delivered by said bank 'to defendant Burns with the contract upon payment of said sum. Since the deed was signed and left with the bank to be delivered to defendants upon payment of the amount, no further tender was necessary. Hence, assuming a fact not true, that the contract was at the time of its date delivered to defendant Burns, and assuming further that there was a consideration for its execution, nevertheless, since any rights thereunder depended upon her paying the sum of forty-five thousand dollars on or before July 1st, she, by making default in said payment, lost all right to enforce the contract against plaintiff. (Glock v. Howard etc. Co., 123 Cal. 1, [69 Am. St. Rep. 17, 43 L. R. A. 199, 55 Pac. 713), and Champion Gold Min. Co. v. Champion Mines, 164 Cal. 205, [128 Pac. 315].)

Moreover, the fact that the contract was never delivered is fatal to the assertion not only of any claim of interest in the land on the part of defendants, but as well to any right to recover the five thousand dollars so paid at the time of the making of the first contract, January 31, 1912, or the recovery of the $750 paid for an extension of time within which, as provided in the second contract, to pay the forty-five thousand dollars. Defendants allege in their answer that the contract was executed, and this is true in the sense only that it was signed by the plaintiff; but according to its express terms, it was not to be delivered, but deposited in escrow until July 1st, when, if Burns paid the forty-five thousand dollars, the escrow holder was instructed to deliver it to de

fendant. In other words, the effect of the transaction was, at most, for a consideration of five thousand dollars, to give defendants an option to acquire a contract for the purchase of the land upon the terms and conditions contained therein, upon payment of forty-five thousand dollars by July 1, 1912. They neglected and failed to exercise such option by paying the forty-five thousand dollars by July 1, 1912, and hence the contract was never delivered.

The appeal is without merit, and the judgment and order are affirmed.

Conrey, P. J., and James, J., concurred.

(Civ. No. 1574. Third Appellate District.-September 28, 1916.] SLAMA TIRE PROTECTOR CO. (a Corporation), Appel

lant, v. G. A. RITCHIE et al., Copartners, Respondents.

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CONTRACT TOR PURCHASE AND SALE OF TIRE PROTECTORS-RELATIONSHIP

CREATED — UNCERTAINTY OF CONTRACT - FINDINGS CONCLUSIVE.Upon an appeal taken from the judgment in favor of the defendants in an action to recover an alleged balance due on account of a certain quantity of tire protectors shipped to them by the plaintiff, where the single question presented by the appeal is whether the contract upon which the action was founded was one whereby the plaintiff agreed to sell and the defendants agreed to buy the protectors at the prices and upon the conditions specified in the contract, or was one whereby the plaintiff agreed to ship or make consignments of the protectors to the defendants upon the understanding or condition that the protectors to be so shipped or consigned should be paid for only when they were sold by the defendants, and the contract upon its face is ambiguous and uncertain as to the nature of the relation which the parties intended thereby to establish between themselves, the finding of the trial court will not

be disturbed. ID.-RELATIONSHIP CREATED BY CONTRACT—UNCERTAINTY-CONSTRUC

TION OF TRIAL COURT-APPEAL.—Where a writing is so character. ized by ambiguity and uncertainty as to the nature of the relation which the parties intended thereby to create between themselves that either of the two constructions of the contract urged by the

respective parties might upon reasons equally cogent be sustained, it is not within the proper or legal functions of a court of review to declare that the construction given the writing by the trial court should be rejected and supplanted by the other construction of

which the instrument is susceptible. ID.--NATURE OF TRANSACTION_UNCERTAINTY OF CONTRACT-QUESTION

OF FACT. Where the contract is uncertain or not clear as to its purpose and effect, the question whether the transaction of which it purports to be the evidence is a sale or a bailment is to be determined from all the circumstances giving rise to it, and on conflicting evidence a question of fact is presented for the jury's determination.

APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. M. L. Short, Judge.

The facts are stated in the opinion of the court.

Miller & Miller, for Appellant.

H. Scott Jacobs, and H. P. Brown, for Respondents.

HART, J.—This appeal is by the plaintiff from the judg. ment and the order denying it a new trial.

The controversy arises out of a contract entered into between the plaintiff and the defendants, as copartners, at Kansas City, Missouri, on the eighth day of October, 1910.

. Said contract is made a part of the complaint.

The plaintiff is a corporation organized under the laws of the state of Nebraska.

The defendants, at the time of the making of the contract mentioned, were copartners, doing business in the city of Sacramento, under the firm name of Ritchie & Heriot.

The single question presented by this appeal is whether the contract upon which the action is founded was one whereby the plaintiff agreed to sell and the defendants agreed to purchase certain tire protectors at the prices and upon the conditions therein specified, or was one whereby the plaintiff agreed to ship or make consignments of the tire protectors to the defendants upon the understanding or condition that the protectors to be so shipped or consigned should be paid for only when they were sold by the defendants; or, to put the proposition in another form, it is, whether the parties to the con

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tract intended it to operate only to create between them the relation of principal and agent or that of creditor and debtor, or, in other words, whether the delivery of the goods to the defendants was intended by the agreement to constitute an absolute sale thereof. The proposition thus stated calls for a construction of said contract, or, what practically amounts to the same thing, involves the question whether the court's findings, which necessarily involve and exemplify its construction of the contract, derive sufficient support from the evidence.

The contract in full reads as follows:

“AGREEMENTS. Made this eighth day of October, 1910, by and between Slama Tire Protector Company, Kansas City, Missouri, known as the party of the first part and Ritchie and Heriot of Sacramento, California, known as party of the second part, witnesseth:

“That whereas, Party of the first part is engaged in selling Tire Protectors, known as Slama Tire Protector, which product is protected by various letters patent of the United States of America, and

Whereas, the party of the second part is desirous of purchasing and selling said Protectors in the States of Washington, Oregon, California, Arizona and Nevada.

Whereas, the party of the first part is willing to permit party of the second part to sell said protectors in accordance with terms mentioned herein.

"Now, therefore, In consideration of the premises and of One Dollar by each of the parties hereto, the other in hand paid, receipt whereof is hereby acknowleged, said parties do covenant and agree to and with each other as follows:

“1. The parties of the second part agree to purchase from said first party a total of five hundred pair of above referred protectors for each year of this contract to be taken either on or before expiration of each year of contract and such quan. tity that is purchased over the stipulated amount can be applied toward total purchases of next succeeding year's purchases.

"2. Said second party agrees that they will not sell any of said protectors at less than the established list prices attached herewith, marked Exhibit A, when selling to the con

sumer nor allow any of their sub-agents to violate this agreement.

“3. The second party agrees to spend the sum of Two Thousand Dollars ($2,000.00) annually during the life of contract towards advertising said protectors in manner they see fit for the benefit of the sale of such protectors and all expenditures for such advertising to be reported by verified statements to said first party. It is also understood that any amount spent over and above this sum, can be applied toward making total of the amount to be spent during the life of this contract.

“4. The party of the first part agrees to furnish party of the second part such quantities of circular matter with the said second party's name printed thereon at any time they are requested to do so and in such quantities as will be necessary for the second party to properly circularize the territory covered and allotted to said second party.

5. The said party of the first part agrees to turn over all inquiries, orders and business coming from the territory or states specified herein.

“6. Said first party agrees to supply a sufficient stock of said protectors to meet all reasonable demand to said second party and a report of stock on hand is to be made the first day of each month to said first party by said second party. All goods taken from such stock to be paid for as provided hereinafter. New and unused protectors are only to be considered as stock on hand. All stock on hand to be kept fully insured, and all freight and storage charges to be paid by second party and in the event of any of said goods being returned for any reason, freight is to be prepaid back to the factory.

7. The price to be paid to first party for such protectors as they shall purchase will be list price as per Exhibit A. attached herewith, less discount of 30 per cent therefrom with an additional discount of 5 per cent for cash, payable the tenth of each month of net cash, if paid at the end of each month. If the said second party shall comply with all the terms and conditions of this contract and as soon as the total purchases paid for, amount to two hundred fifty pair (250) then the said first party will allow an additional discount of 5 per cent from all protectors purchased. Should these same conditions be complied with and the total paid

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