Kircher

The respondent contracted in writing with one James H. Aye, as general contractor, to construct a dwelling-house. The latter obtained appellant’s services to construct certain tile work in two bathrooms, which later proved defective, whereupon respondent demanded that appellant perform necessary reconstruction work, which he declined to do. It was done by another, whom respondent paid, and thereafter instituted this action against the appellant for the cost of such extra work. Judgment was rendered in favor of the plaintiff, a motion for a new trial was prosecuted, which was denied, and this is an appeal from the judgment and from the ruling upon said motion. Since no appeal lies from an order denying a new trial, the proceeding last mentioned must be dismissed.

The parties agree upon the facts, and mutually submit for determination the question of law whether respondent, the owner, should recover from appellant or the general contractor. The contract first mentioned provided, in part, as follows:

The plans and specifications required that:

It appears that the general contractor negotiated with and employed appellant to perform the work of which complaint was made, and that he…