O'Brien

In this action the defendant, A. J. Garibaldi, appeals from the judgment rendered against him and from the order denying his motion for a new trial.

The judgment is based upon the making and acceptance of the following written order, viz.:

As an evidence of his acceptance of this order the defendant signed his name thereon below the signature of Jackson. The record further discloses that at the time of the- presentation and acceptance of the order Jaekson, a contractor and builder, was engaged in the erection of a building on certain real property owned by the defendant, in the city and county of San Francisco, pursuant to the covenants of a building contract, in the usual and ordinary form, .executed by Jackson and defendant on the twelfth day of October, 1906.

The contract price of the building was $7,600, payable as the construction of the building progressed, in four equal installments. Prior to the nineteenth day of January, 1907, the date of the order in question, Jackson, the contractor, had so far progressed with his work, in accordance with the terms of his contract, as to be entitled to and he was paid the first two installments, amounting to the sum of $3,800.

On…