Barry

This is an appeal from a judgment in favor of the plaintiff and against the defendant and appellant United Surety Company, a corporation.

The facts, which are mainly undisputed, are briefly these: One W. P. Barry entered into a contract with plaintiff to construct a certain building in the city and county of San Francisco, for which he was to be paid the sum of eight thousand four hundred dollars in installments as the work proeeeded according to the terms of his contract. Barry began the work of constructing the building, but after he had proceeded with such work for some time, and had received payments in accordance with the contract aggregating the sum of four thousand five hundred dollars, he abandoned the construction of the building, and formally notified the plaintiff thereof by letter. Thereupon the plaintiff and the representative of the surety company held several conferences, as the result of which the latter wrote the plaintiff a letter reciting the fact of Barry’s abandonment of his contract, waiving its right under its bond to assume said contract and complete said building, and consenting and agreeing that the plaintiff might proceed to complete the structure, and…