Appeal from the Seventh Judicial District.

The complaint sets forth that the plaintiff in 1860, “ at the instance and request of the Board of Supervisors of the county of Napa, duly authorized bylaw to contract on behalf of said county,” performed labor and furnished materials (giving the items of each) for the county, in repairing a bridge on one of the streets of Napa City—that in consideration thereof the Board of Supervisors, on behalf of said county, promised to pay plaintiff therefor what the same was reasonably worth—that the services and materials were reasonably Avorth $2,059.50—and that before the commencement of this action, plaintiff presented the demand to the Board of Supervisors for allowance, who refused to allow the whole or any part of it. The complaint is verified.

The answer, also verified, is as follows:

“Now comes defendant, and for answer to plaintiff’s complaint, herein denies each and every allegation therein contained, except as is hereinafter specifically admitted. And for more specific denial, denies that defendant is indebted to plaintiff in the sum of $2,059.50, as claimed in complaint, or in any other sum whatever. -Defendant denies that plaintiff, at the instance and request of the Board of Supervisors of said county, performed the work and labor, and furnished the materials therefor, set out in plaintiff’s complaint, or that said Supervisors ever undertook and promised to pay plaintiff therefor, as set out in complaint, or in any other manner than is hereinafter admitted and set forth.

“ Defendant also denies that said Board of Supervisors ever rejected plaintiff’s bill for said services, as charged in plaintiff’s complaint, or in any other manner whatever. Wherefore defendant says plaintiff ought not to be permitted to further prosecute his said action, and prays that defendant may have judgment for costs herein incurred and expended. Defendant, further answering, avers that on the tenth day of May, 1860, plaintiff, and one John Williston, entered into a contract with defendant for the erection of two certain stone bridges in said county, one of which bridges is the same mentioned in plaintiff’s complaint; and that by the terms of said contract, said plaintiff and Williston undertook and bound themselves to furnish the materials and erect said bridge, according to plans and specifications on file in the office of the County Clerk of said county, and to complete the same, on or before the first day of October, 1860; and that, according to the terms of said contract, said plaintiff and Williston were to furnish the best quality of stone and other materials for said bridge, and to erect the same in a workmanlike manner, and to the satisfaction of the Board of Supervisors, or of the Superintendent to be by them appointed. That besides the contract above mentioned, no contract was made with plaintiff concerning said bridge whatever, and that the work and labor charged to have been performed by plaintiff on said bridge, is part and parcel of the labor and materials furnished and performed by said plaintiff and Williston, in their said contract, except as hereinafter set forth as follows, to wit: In rounding off the piers of said bridge, and the laying of a quantity of stone and gravel around the piers of said bridge, for which last services defendant agreed to pay said plaintiff and Williston a reasonable compensation therefor. Defendant admits that the price charged for rounding the piers of said bridge, in plaintiff’s complaint, is reasonable and just. But not being advised as to the quantity of stone and gravel, if any, deposited by plaintiff, or of the value thereof, denies that plaintiff performed the services, and also that the same were worth the amount charged therefor by plaintiff, or any other sum. And defendant expressly denies that the said Board of Supervisors, or any other authorized agent of defendant, ever contracted with plaintiff therefor, except as above set forth. Wherefore, defendant avers and submits to this Honorable Court, that plaintiff ought not to be allowed further to prosecute this said action. Because defendant says that if defendant is hable to pay for the services mentioned in plaintiff’s complaint, that the same is due and owing to plaintiff and Williston jointly, and not to plaintiff alone. Wherefore, defendant prays this Honorable Court for an order commanding said Williston to be made a party plaintiff herein, so that the rights of this defendant may be protected, under the terms of said contract above set forth, between plaintiff and Williston, and this defendant.

“ Defendant further avers and charges, that neither the plaintiff, nor plaintiff and Williston, is entitled to recover of defendant anything for, or on account of said bridge, according to the terms of said contract: 1st. Because defendant avers that the said bridge is still unfinished. 2d. Because the said materials and work upon said bridge were insufficient, and not in accordance with terms of said contract. 3d. Because the material used in the construction of, as well as the labor performed upon said bridge, were not satisfactory to, nor approved by the Board of Supervisors, nor by the agents of said Board, as by the terms of said contract it was expressly provided for; and 4th. Because said plaintiff and said Williston have already been paid by defendant in full, for all the work, labor and materials used and employed by them in the construction of said bridge.”

The Road Law of 1860, referred to in the opinion, will be found on page forty-two, of the laws of 1860, and the twelfth section is as follows. “ The Road Overseers of their respective districts shall cause all the public highways within their districts to be kept clear of obstructions and in good repair, causing banks to be graded, bridges and causeways to be made, when the same may be necessary to keep the same in good repair, and to renew them when destroyed, * * provided, That the building of bridges and repairing thereof, when the estimated cost exceeds fifty dollars, shall be let at public auction by the Overseer, to the lowest responsible bidder, under the direction of the Board of Supervisors, after ten days public notice posted in three public places in the district, and, when required by the Board of Supervisors, shall let any other contract for the repair of roads or bridges, as by them directed.”

When the case was called for trial, plaintiff moved for a judgment in his favor, on the pleadings; which motion was overruled and exception taken by plaintiff. Plaintiff then introduced his evidence, from which it appeared that there had never been any written contract concerning the work for which the suit was brought; that plaintiff had been before the Board of Supervisors on several occar sions, and conversed with them about making certain repairs on the bridge, and had been told by them to proceed and do the work and he should be paid for it; that the work was done by plaintiff, and was of the value stated in complaint; that one of the Supervisors was frequently present while the work was going on, giving directions in regard to it. It was admitted that the work was upon a public highway.

On proof of this character, plaintiff rested. Defendant moved for a nonsuit, which was granted; and from the judgment of nonsuit plaintiff appeals.