Lisher

Plaintiff as assignee brought this action to recover of and from the defendant A. J. Fairbanks the sum of $2,023.77, for certain road construction work done and performed by plaintiff’s assignor, G. L. Lisher. The second amended complaint is in two counts. The first count declares upon a written contract and covers a demand of $1,979.03, and the second count is upon a quantum mei'uit for the recovery of $44.74 for work done on the same road, outside of the written contract. Before the trial was concluded plaintiff was paid the sum of $1,454.11 on the amount claimed to be due under the first count, leaving in dispute a balance under that count of $502.43. Plaintiff was denied relief on both counts and has appealed.

In September, 1920, the county of Sonoma awarded a contract to respondent for the rebuilding of section “A” of the Healdsburg-Forestville highway, which included the work of grading, filling, removal of oil from roadway, graveling, and concrete work. Subsequently, on April 1, 1921, respondent entered into a separate contract with G. L. Lisher, appellant’s assignor, to do the concrete work specified in the county contract. Referring to the first count, the controversy…