Hubermann

This is an action to recover on two bonds, given concurrently with a contract for the construction of a building for the appellant. One of the bonds was executed pursuant to the provisions of section 1183 of the Code of Civil Procedure, relating to mechanics’ liens, and the other was a common-law bond, given to secure a faithful performance of the building contract. There had been prosecuted to final judgment, before the trial of the present action, certain consolidated actions for the foreclosure of mechanics’ liens on the building agreed to be constructed under the contract. Both the appellant and the respondent were parties defendant in those actions and neither prayed for or was granted any relief against the other. In those cases the trial court found that there was not a substantial performance of the building contract. The appellant, at the trial of the present action, offered in evidence the judgment-roll in the mechanic’s lien cases, but the" evidence was excluded. The trial court found that an allegation of the complaint to the effect that the building contract had not been performed was not true, and rendered judgment for the defendant, and the plaintiff appeals.

The…