Reed

In this case there are two appeals, both from the judgment, one being taken by plaintiff, and the other by the defendant.

A brief outline of the facts of the ease is as follows: On September 20, 1905, C. E. Loss entered into a contract with the Ocean Shore Railway Company to perform all the grading work, track-laying and surfacing for the company’s double track railroad from its initial point in San Francisco to Scott Creek in Santa Cruz county, being a distance of about sixty-seven miles. The contract, among other things, contained a classification of the materials to be worked, said materials being classified as earth, loose rock, solid rock, etc. On October 2, 1905, C. E. Loss sublet certain parts of the work, constituting what were known as sections 4 and 5 thereof, to Mahoney Bros, and Malley, copartners, the predecessors and assignors of plaintiff. In January, 1906, Ma-honey Bros, and Malley, on the one part, and the defendant on the other, confirmed in writing a previous oral agreement between them, whereby the defendant was to perform that portion of the work known as section 4. Prior to February 27, 1906, Mahoney Bros, and Malley had transferred to plaintiff all their…