Hopkins

This is an appeal from an order granting a new trial. The action was one to foreclose a materialman’s lien. The facts of the case were these: On or about January 22, 1909, the defendant, E. W. Hopkins, as the owner of a lot in San Francisco, entered into a written contract with Webster-Mace Construction Company as a contractor for the erection of a building thereon. The contract price was eighty-one thousand two hundred dollars, payable as follows: Seventy-five per cent of the value of the labor performed and materials installed during each month was to be paid on the first day of the succeeding month until final acceptance of the building, and the remaining twenty-five per cent of the contract price was to be paid thirty-five days after such acceptance. The contractor commenced to work upon the building under this contract, but on May 27, 1909, before completion thereof abandoned its contract. Prior to the time of said abandonment the plaintiff herein had furnished the contractor lumber to be used and which was actually used in the building amounting at agreed prices to the sum of $2,515.48, of which amount there was an unpaid balance of $1,590.38 at the time of such abandonment,…