Silberstein

The action is to recover from defendants the sum of ten thousand dollars on a bond given by them for that amount as sureties of the Burnight-Kennedy Company, a corporation, which had entered into a contract with plaintiff to erect a building in the city of Chico. The cause was tried by the court without a jury and defendants had findings and judgment in their favor. Plaintiff appeals from the judgment and from the order denying his motion for a new trial, The contract price for the building was forty-one thousand five hundred dollars, to be paid by progressive payments, as follows:

By appropriate averments in their answer, defendants sought to have corrected an obvious ambiguity or mistake in the latter part of clause “Second,” which provided for a completion payment of thirty-one thousand dollars, so as to read thirty-one hundred dollars, and the court, on sufficient evidence, found that it was the intention of the parties that this payment should be thirty-one hundred dollars. Thus construed, payments should have been made as follows:

The first payment of two thousand dollars was made* on May 22, 1909, and at various times each month thereafter thirteen payments of two…