Appeal from the District Court of the Fourth Judicial District, County of San Francisco.

This was an action commenced by J. P. Clay and William Templeton, copartners in business, against the defendant, to recover the sum of $2,366 10, for bricks alleged to have been sold and delivered to defendant. Defendant, in his answer, denied the indebtedness as charged in the complaint, and alleged that the bricks were sold and delivered to John S. Williams, with, whom the defendant had contracted for the construction of a brick dwelling-house; that Williams by his contract was to furnish all the bricks and materials for said house, and that Williams did furnish such bricks and materials, and that defendant paid him for them as per contract.

On the trial, plaintiffs proved that the bricks were used in the construction of defendant’s house; that Williams was about two weeks negotiating with plaintiffs for the purchase of'the bricks; that plaintiffs wanted the defendant to become responsible for the bricks, and that Williams so informed the defendant, and he accompanied Williams to plaintiffs’ brick-yard, and there the terms upon which plaintiffs were willing to sell the bricks to Williams were repeated over in presence of defendant. Defendant said “ he would become responsible for all the brick furnished his building, and whatever contract or agreement was made, that he (defendant) would see carried out, or would pay for them if Williams did not,” or words of similar import. The recollection of the witness was not clear, and he did not pretend to state the language or precise words, hi or does it appear whether the promise of defendant preceded or was subsequent to the contract with Williams. After the bricks wore delivered, or a portion of them, defendant paid plaintiffs $500 on account of the bricks, and plaintiffs gave a receipt to Williams for the amount, and Williams receipted to defendant. Williams afterwards paid plaintiffs $500 more and took a receipt to himself on account of the bricks.

Plaintiffs refused to produce their books on trial, after notice from defendant to do so. It was also proved that plaintiffs had, prior to the institution of this action, commenced suit, by attachment, against Williams, for the same bricks mentioned in their complaint, and garnisheed defendant for the amount due from him to Williams.

This cause was tried before the Judge of the late Superior Court without a jury. Plaintiff had judgment. This Court was subsequently abolished, and the case transferred to the Fourth District Court, where, on motion of the defendant’s counsel, a new trial was granted. From the order granting a new trial the plaintiffs appealed.