McIntosh

This appeal was taken by the defendant, W. W. Funge, Jr., now deceased, from an order denying his motion to offset judgment and issue execution for an amount claimed to be due as repayment and contribution. (Sec. 709, Code Civ. Proc.)

The controversy arises out of the following facts: Appellant entered into a contract with the respondents, McIntosh Bros., for the construction of a building on appellant’s lot, and after the work had progressed to a certain stage differences arose between appellant and the contractors, as a result of which appellant refused to allow the contractors to proceed further with the construction of the building; whereupon the contractors filed an action for damages against appellant for alleged breach of contract. In the meantime two subcontractors, Smith Lumber Company and G. Massagli & Co., filed liens against the property for materials furnished and work performed, and later brought actions to foreclose said liens. Besides answering the complaint of McIntosh Bros., appellant filed a cross-complaint against them for damages for alleged breach of the building contract. The three actions were consolidated for trial, and the determinative issue presented…