The difference between plaintiff and defendant as to the ground upon which the plaintiff’s right to a recovery is based is immaterial. It matters not whether the ground of such right is as stated by plain-. tiff, or is as stated by defendant. The right to recover is, in fact, based upon the contract entered into between Gruthrie & Norton and the defendant, and depends upon the proper construction of that contract.
It is very clear that the contract did not require the defendant to settle and balance the real estate account of the bank. The contract in express terms required the defendant to settle and balance certain accounts of *247the bank other than the real estate account. The expression of such requirement in the contract, as to the accounts named, excluded all other accounts of the bank from such requirement. The plaintiff, therefore, cannot recover on the ground that the defendant was required by the contract to settle and balance the real estate account of the bank.
The question in the case, • then, is, did the plaintiff pay too much for the bank building by two thousand dollai’s, by mistake, under a proper construction of the contract ?
To sustain an affirmative answer to the latter question the counsel for plaintiff argues as follows : “The bank building was a part of the property of the bank, and was owned by the stockholders instead of the two thous- and dollars which it cost, the building having been paid for out of the money of the bank belonging to the stockholders, and the building was, therefore, sold in the sale of the capital stock.
“The specific mention of the building, as separate from the stock, was to provide for the real estate entry on the books of the bank, of two thousand dollars, which should be deducted from the ten thousand two hundred and fifty dollars for the stock, because the stock was eight thousand two hundred and fifty dollars in money, and two thousand dollars in the bank building. As the bank building was bought and paid for in the purchase of the capital stock, the real transaction was for the aggregate of eleven thousand seven hundred and fifty dollars, or ten thousand two hundred and fifty dollars for the stock (which represented also the ownership of the bank building), and fifteen hundred dollars for the furniture, fixtures and (stationery; and the including of it the second time in the thirty-five hundred dollar item was a manifest inadvertence, overlooked by both parties, unless it was to be immediately repaid to-Guthrie & Norton to balance the real estate account.”
The contract was not a contract for the mere Rale nf *248the capital stock of the bank by the defendant to Guthrie & Norton. The above argument made by the counsel for plaintiff is, therefore, fallacious, it being founded upon the assumption that the contract wás such a contract. That the contract was not such, a contract is clear for several reasons. The obligations of each party to the contract are made different from what they would have been had the contract been such a contract. Because it is not only true, as is agreed for plaintiff, that the sale of the capital stock of the bank would have carried the bank building, but such sale would also have carried the entire property of the bank, both real and personal, including the furniture, fixtures and stationery. And, besides, had the contract been a contract for the mere sale of the capital stock of the bank, the defendant would not have been obliged to pay any of the liabilities of the bank, or to guarantee the solvency of any of its assets.
While the sale of the capital stock of the bank would have carried with it all of the property of the bank, it was entirely competent for the defendant to sell the slock to Guthrie & Norton on condition that they should pay a certain sum for certain specified prop: erty of the bank. The defendant had the right to annex such condition to the sale of the stock. Such condition was clearly a part of the contract in this 'case.
One of the conditions was that Guthrie & Norton should pay thirty-five hundred dollars for “the bank building, furniture, fixtures, stationery, etc.” Another condition was that the defendant should 'take certain of the bank’s assets, the Lathrop city scrip ; that he should “square the cashier’s account;” “and that he should take up or satisfactorily secure the Fielding Burnes and O. M. Johnson note, and that he should satisfactorily secure the Davis & Perry overdraft.” The obligations and rights of the parties to the contract were not left to be determined by the relation borne by them to the stock, but they were fixed and settled by the *249terms of the contract. And in this action, which is to enforce the contract, the terms of the contract must control.
The argument made by counsel for plaintiff applies with as much force to the furniture, fixtures, and stationery of the bank as it does to the bank building. The former were also the property of the bank, and as ■such belonged to the stockholders, and had been paid for out of the bank’s money.
There is apparent no reason why Guthrie & Norton •should, under the contract, pay for the furniture, fixtures, and stationery, and not also for the bank building. We have seen that their liability to do so did not depend upon the settlement and balancing of the real •estate account of the bank by the defendant. It is also clear that such liability did not depend upon the assets of the bank exceeding its liabilities, from the terms ol the contract no such conclusion can be drawn.
We hold that this is a suit to enforce a contract: that under the contract the defendant did not have to ■settle or balance the real estate account of the bank; that under the contract the firm of Guthrie & Norton had to pay two thousand dollars for the bank building, without regard to the condition of the real • estate account of the bank, or the amount of the assets of the bank; and that, therefore, the claim of the plaintiff is without merit.
The judgment is reversed and the cause remanded.
Ellison, J., concurs; Philips, P. J., not sitting.