Suhr

The action was in claim and delivery for the recovery of certain first mortgage six per cent certificates of the face value of eleven thousand five hundred dollars. The original defendant was the Western Mortgage and Guaranty Company, a corporation. Upon affidavit of the president of said company that the Metcalfes claimed to be the owners of said property and had made a demand for its possession, the court made an order directing the Guaranty Company to deliver said certificates to the clerk of the court and that Eva and George Metcalfe be substituted as parties defendant in the place of -said company.

The answer of said defendants sets forth the considerations which we are called upon to determine. Therein by suitable averment it appears: 1. That on or about the second day of April, 1912, the defendants entered into a building contract with the Mutual Construction Company for the construction by the latter of a hotel upon the lot of defendants on Geary Street, between Mason and Taylor, in San Francisco, for the sum of $141,350. It was agreed that ninety thousand dollars of that sum should be payable in certificates of the Western Mortgage and Guaranty Company, which were to be…