Roberts

This is a companion appeal to that already considered by the court in Roberts v. Spires et al., 195 Cal. 267 [ 232 Pac. 708 ], It is therefore unnecessary to restate the facts set forth in that opinion. The lien claimants in the ease were awarded personal judgments against Roberts, the contractor, and the United States Fidelity & Guaranty Company, his surety upon the materialmen’s bond, for the full amounts of their respective claims, aggregating $40,791.41, which were adjudged to be liens upon the property of the owner. The judgment directed that the owner pay this sum of $40,791.41 to the lienholders out of the unpaid balance of the contract price due Roberts, amounting to $52,-295.56, and apply the balance of $11,504.15 toward the payment of her judgment in the sum of $36,211.35 for damages against Roberts, caused by his delay in completing the building and that she have and recover of and from the contractor and his surety the unpaid balance of her damages, amounting to $24,707.20, plus certain costs.

Mrs. Spires appealed from that portion of the judgment which required her to pay the lien claimants in full before deducting the whole amount'of her judgment for damages from…