Keeling

This is an appeal by the defendant from a final judgment in favor of the plaintiff, taken within sixty days after entry, and from an order denying defendant’s motion for a new trial, in an action in quantum meruit for labor performed and materials furnished.

Briefly, the facts are that in the month of June, 1907, the defendant entered into a contract with the Cliff House Company, a corporation, to alter and repair an existing building known as the Cliff House. Subsequently the defendant made a contract with A. C. Wocker, plaintiff’s assignor, whereby certain painting and plastering work in and upon said building was to be done by the latter fdr a sum not exceeding $4,700, and he was to accept payments on the basis of seventy-five per cent of the work done from time to time as the work progressed, the remaining twenty-five per cent being payable thirty-five days after its completion.

Prior to the time Wocker was able to complete his contract, and after he had furnished labor and materials of the reasonable value of $3,545.96, the building was destroyed by fire without the fault of either party to the contract. At this time Wocker had received on account a payment of $1,800. This…