Tremble

In a suit by the owner against the contractor and his surety for damages for breach of a building contract, judgment was entered in favor of the owner and against the contractor, and in favor of the surety against the owner. The plaintiff appealed on the judgment-roll from that part of the judgment in favor of the surety. Prior to the establishment of two divisions thereof, the district court of appeal of the first appellate district affirmed the judgment. On rehearing, the supreme court reversed both the decision of the district court of appeal and the judgment, directing the trial court to enter judgment in favor of the owner and against the surety. (Tremble v. Tuman, 175 Cal. 696 , [ 167 Pac. 142 ].) From the judgment so entered the surety appeals, bringing up a bill of exceptions. The principal contention is that the evidence does not support the judgment.

The building contract was made in May, 1911, for the erection of a building to cost thirty thousand dollars. Coincident with its execution, the appellant surety company executed its 'bond in the sum of seven thousand five hundred dollars to the owner for the faithful performance of the contract. The plaintiff alleged…