Condon

The plaintiff, a building contractor, brought this action to recover an amount alleged to be due as the reasonable value of labor and materials furnished in the construction of a building at the comer of Hayes and Gough streets in San Francisco. The defendant relied on the claim that all of the same were furnished in pursuance of a written contract between the parties for the construction of such building for thirty three thousand dollars, that plaintiff abandoned his contract without completing the same and that he was compelled to finish the same at his own expense at a cost, reasonably incurred, of some five thousand dollars and more in excess of the contract price. By cross-complaint he sought judgment for the damage so caused. The judgment was that plaintiff take nothing and that defendant recover simply his costs. This is an appeal by defendant on the judgment-roll from the judgment and from an order made after judgment denying defendants motion made under section 663 of the Code of Civil Procedure to vacate the judgment, annul the conclusions of law, and enter a judgment in favor of defendant for $5,578.80 as well as costs.

It is urged that the order last referred to is…