Appeal from the Superior Court of the City of San Francisco.

The complaint alleges that the defendant is indebted to the plaintiff in the sum of eighty-six hundred and six dollars and sixty-seven cents, on a certain acceptance, or instrument, in writing, as follows:

“$8,606 67. San Francisco, Jan. 31st, 1854.

“ Please pay to my own order the sum of eight thousand six hundred and six dollars and sixty-seven cents, for value received, the same to be paid out of the appropriation,- as soon as made, for the extra- work done to the United States Marine Hospital building in this city, a statement of which has been made out and regularly forwarded by the proper authorities to the Secretary of the Treasury of the United States, to be laid before Congress at the present session ; this sum being in full of settlement this day made, for the furnishing and laying the brick in said building, agreeably to the terms of the contract between C. Homer and myself. Geo. D. Eagle.

“ To C. Homer, Esq., San Francisco.”

On the face of which is written as follows, in the handwriting of defendant: .“ Accepted, C. Homer " And avers that the appropriation has been made, and the amount paid to the defendant, out of which the above draft was to have been paid, but that the defendant refused to pay, etc., and claims legal interest from the-day of-, 1855, the time of such appropriation and payment.

On the fifth of July, an answer was filed for defendant, denying generally all the allegations of the complaint, and claiming judgment against the plaintiff for two thousand dollars, for goods sold and delivered, and on an account stated.

The casé came on for trial on the eighteenth July, and the acceptance written across the face of the writing declared upon, being admitted to be the handwriting of the defendant, the evdence showed:

That in November, 1851, the defendant contracted with the United States to erect the marine hospital in San Francisco, and complete it in one year, for one hundred and forty thousand dollars ; that he was not furnished with a site until December, 1852, more than a year after, and has preferred a-claim for damages in consequence, which is now pending, for upwards of forty thousand dollars; that there were two or three supplemental contracts; that the original contract provided that the walls were to be built hollow, and the last supplemental contract provided that they should be built solid, and that the defendant should be paid fifty-five dollars per thousand bricks, for all the extra brick-work required in consequence; but that he should wait for payment until Congress made an appropriation therefor; that for this extra brick-work, and other extra work performed about the building, the defendant made out a statement claiming about sixty thousand dollars, which has been forwarded to the Secretary of the Treasury, who has laid it before Congress for action; that the defendant has received the whole amount heretofore appropriated by Congress, on account of the building, and at various times during the progress of the work received sums of money on account of extra work, such as digging a well, laying drains, and grading, etc., amounting to some forty thousand dollars in all; but that he has not received any money on account of the two claims referred to, that no appropriation has been made by Congress therefor, and he is now in Washington urging the allowance of those claims. That an examination of the building had been made by Z. B. Tower, a captain and brevet-major in the United States army, under instructions from the Secretary of the Treasury of the United States, and the said Tower had reported that in his opinion Mr. Homer had been paid all that the work and materials in "the building were worth; that his examination was ex parte, and no one was present on behalf of Mr. Homer, and that all his information as to payments to Mr. Homer, had been derived from papers forwarded to him by the Secretary of the Treasury at Washington. That the defendant had sold to plaintiff a lot of piles, for which the plaintiff was to pay two thousand dollars, but the witness was of the impression that the amount was to be credited on the instrument now in suit.

The defendant moved for a nonsuit, which was refused.

The Court charged the jury that it was for them to say whether the time when the note was to become due had arrived, and how much was due, to which the defendant excepted.

The jury found a verdict for plaintiff for six thousand six hundred and six dollars and sixty-seven cents.

A motion was made for a new trial, and overruled by the Court. Defendant appeals.