Kreuzberger

— Action to recover an alleged balance for work done .aud materials furnished by plaintiff to defendant in the construction of a sidewalk in the city of Sacramento. The plaintiff recovered judgment in the superior court, and the defendant appeals.

The claim made by the plaintiff in the court below was, in substance, that by the terms of his contract he was to erect a wooden and cement sidewalk for .defendant, with a brick bulk-head around its outer edge, the portion on Eighth Street to be made of new lumber, except that the old posts were to be used as supports for it, *254 the new lumber to be of the usual size and quality for such work, and to be covered over with a good quality of cement four inches thick, etc., and that part of the sidewalk to be placed on I Street was to be made of the best of the lumber taken from the old sidewalk around the premises at the time of making the contract, except that the top was to be covered with new one-inch redwood lumber, upon which was to be laid the cement. On the other hand, the defendant, in his answer, alleged that there was no agreement that old lumber should be used in the construction of the sidewalk referred to, but that it was…