in his land, and he seeks to recover such damages from respondent.
The trial court found for respondent, apparently on the ground that appellant had failed to establish any damages. We shall not discuss the evidence as to that point, or any of the many questions that are raised that might bear upon the liability of the city. The city is not a party to this action. As we view the pleadings and the facts found, there are other and insuperable obstacles to any recover against this respondent. It is not claimed that there ever was an acceptance on the part of the city of the proposed dedication, or that the park ever had an existence as a city park; on the contrary, it is claimed that the city did not accept, and that respondent has placed it out of the power of appellant to enforce an acceptance. This case does not present any contract for the purchase and sale of realty. There is no element of forfeiture in it, nor is it a case where interest on purchase money can compensate for delay. The contract between the trustees and the parties to this action simply provided that the land should be ready for dedication by January 1, 1885, and then gave the city an option until January 1, 1886, within which to accept such dedication. The resolution passed by the city council on August 15, 1883—and we must not be understood as expressing any opinion as to whether or not such resolution was regularly adopted, or within the powers of the council—purported to bind the city to accept whenever the land was improved as provided in the contract with the trustees. The findings show it was so improved before January 1, 1885. The city did not accept. The delay was not inadvertent and excusable; on the contrary it was willful and intentional, as is indisputably shown by the resolution of December 7, 1885. Hence an acceptance by the city at any time after January 1, 1886, would have given it no right whatever to insist upon performance upon the part of the proposed grantors. See Pom. Eq. Jur. § 1408, and note. At the time the respondent withdrew his deed from the trustees, and conveyed the land to the college, the city certainly had no legal right to object thereto; and the case furnishes us with no evidence of any contractual relations between the parties to this action that would have
