Rauer

The defendant, Fernando Nelson & Sons, appeals from a judgment in plaintiff’s favor. The action was commenced by the plaintiff to recover the sum of $5,532.10, alleged to be due from the defendants upon a written contract, dated October 16, 1917, whereby Fernando Nelson & Sons and A. E. Buckman agreed to pay to respondent the sum of $680 per month as rental for certain sand machines, cars, rails, and wire used by Buckman in excavating and filling certain property under a contract with appellant. The complaint was in the form usual in actions to foreclose a mechanic’s lien, and prayed that'the amount- sued for be adjudged a lien upon the land of the defendant Nelson. & Sons upon which the work was done by Buckman. After the testimony was in, plaintiff filed an amended complaint to conform to proof, based upon an implied contract for the reasonable rental value of the equipment, and the defendants Fernando Nelson, individually, and A. E. Buckman were dropped from the ease.

Early in 1917, Buckman, as contractor, started the work of excavating and filling blocks and streets of a tract of land of about fifty acres at the west portal of the Twin Peaks tunnel in San Francisco under a…