Currie

Defendant appeals from an adverse judgment in the sum of $481.88 in an action to recover damages for the alleged negligent injury to plaintiff’s right of way fence, committed by defendant while performing certain highway construction work- under a written contract with the county of Marin. The appeal is taken on the judgment-roll alone, and the points urged for reversal are that the complaint does not state facts sufficient to constitute a cause of action, and that the findings do not support the judgment. As will hereinafter appear, both points are based upon the single legal contention that the liability for the injury,. if any there was, was upon the county of Marin and not the defendant as contractor.

In paragraph II of the complaint it was alleged in substance that defendant, “while purporting to act under and pursuant to a contract theretofore entered into” by him with the county of Marin, constructed certain improvements, fills and paving upon the highway adjacent to and parallel with plaintiff’s right of way, along which plaintiff maintained a fence. And in paragraph III of the complaint it was alleged that in performing said construction work defendant wilfully and…