Bryant

This action was brought by respondent against appellant to recover the sum of $2,153.88 for building materials furnished appellant by respondent. In his answer appellant admitted the purchase of said building materials but alleged that said materials were delivered to him to be used in the construction of a certain apartment hotel in Oakland under an oral understanding and agreement that seventy-five per cent of the sale price of said materials should be paid for in cash and that the balance should be paid for in the preferred capital stock of the building .corporation engaged in erecting said apartment hotel. At the trial it was admitted that if appellant’s contention was correct, respondent was entitled to $553.88 in cash and $1600 worth of said stock; that this amount of cash and stock had been delivered to respondent prior to the commencement of the action, but that respondent had refused to accept the same.

The trial court found against the existence of the agreement relied upon by appellant. A motion for a new trial was made and denied, and appeal is taken from the judgment.

The sole question for this court to decide is whether or not the evidence is sufficient to justify…