Tubbs

There are two appeals in this ease, which, by stipulation, have been submitted on the same record, and they will receive consideration in one opinion.

There is a sharp controversy as to some of the facts, but the following are undisputed and are probably sufficient for a general understanding of the case: On the fourteenth day of March, 1908, C. H. Tubbs and Rosario Delillo entered into a contract in writing, whereby Tubbs agreed to furnish all the labor and material (including tools, implements and appliances) necessary for the construction on a lot of land owned by Delillo in a workmanlike manner of a three-story frame dwelling-house, and to complete the construction of the same on or before the eleventh day of July following, and Delillo promised to pay therefor the sum of $5,000 in seven installments as follows: (1) When the foundation was in, $350; (2) When the frame was up and the roof on, $1,000; (3) When the plumbing was roughed in, $500; (4) When the brown coat of mortar was on, $500; (5) When the white coat of mortar was on, $1,000; (6) When the building was completed, $450; (7) Thirty-five days after completion, $1,200. Under said contract each installment was payable…