Herdal

Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The action was one for the foreclosing of a lien upon real property in the city and county of San Francisco. Defend-, ant did not dispute the following facts: William J. Sheehy, her predecessor in interest, entered into a contract with plaintiff’s assignors according to the terms of which they were to erect a building upon his land. The contract price was $3,565, payable in four installments. W. J. Sheehy filed and recorded a written acceptance of the building on March 8, 1910. All of the contract price was paid to plaintiff’s assignors except $660, the amount for which their lien was filed. The foregoing facts are not disputed, but the defense to the action was based upon the' fact, found by the court, that the contractors, contrary to their written agreement with Mr. Sheehy, had erected the building partly upon his land and partly upon an adjacent public street. The court found that the defense was a good one, and that the building had not been located in compliance with the terms of the contract because it was not entirely upon the property of William J. Sheehy. There was a further…