Appeal from the Seventh District.

The contract sued on, which was for the erection by plaintiffs for defendants of a warehouse of specified dimensions and material, contains the following words : “ Now, Messrs. J. Kalkmann & Co. agree and bind themselves to have the above specified warehouse built in a good workmanlike manner, and finished on or before the fifteenth day of July next, for the sum of thirteen hundred and fifty dollars, payable two hundred and fifty dollars cash down on signing this contract, five hundred dollars when the building is finished, and six hundred dollars payable in freight on lumber or cash within eight months from this date. And Messsrs. T. F. Baylis & Co. bind themselves to make the above payments to Messrs. J. Kalkmann & Co., and carry lumber for them whenever desired, at the rate of two dollars and fifty cents per 1,000 feet, from San Francisco to Petaluma, and take such lumber on board in San Francisco from any wharf or alongside of any vessel as may be desired, provided the quantity shipped is not less than twenty thousand feet at a time, and at the rate of three dollars per 1,000 feet from Redwood City to Petaluma, provided the vessel sent to that place get a full cargo. In witness whereof,” etc.

(Signed) “ J. Kalkmann & Co.

“ T. F. Baylis & Co.”

The complaint, verified, contained three counts: 1st, upon the contract, claiming the $500 and $600. Under this count plaintiffs aver, among other things, that after the building was completed according to contract, and about July 15th, 1858, they made a written demand of defendants to send a vessel to Redwood City and to bring therefrom a cargo of lumber to Petaluma, which was refused. The 2d, upon extra work, done at defendants’ request, in moving the foundation of the building, claiming therefor $10. The 3d count was a quantum meruit for work and labor, and quantum valebant for materials to the amount of $1,360 with a credit of $250 paid, leaving due $1,110.

The defendants answered, denying the allegations of the complaint, and at the same time gave notice that they would move to strike out the whole of the third count, as redundant matter; and also, to strike out so much of the first count as related to the payment of $600, on the ground that it was not due, according to the allegations of the complaint, when the same was filed. The Court refused to strike out the third count, defendants excepting, but struck out that part of the complaint which related to the $600.

The parties went to trial after this order was made, and the jury found for the plaintiffs nearly the amount of their demands, less the $600. The defendants moved for a new trial, which was granted. After the new trial had been granted, plaintiffs had leave to amend their complaint, but never did amend. The case came on for trial again, and the plaintiffs had judgment for the whole of their demands, (including the $600 which the Court struck out) less about $110 and some interest, $90 or $100, more or less.

The defendants again moved for a new trial, which was denied, and they appeal.