Spinney

— This is an action to cancel a contract for the construction of a brick building in the city of Fresno, and to foreclose a mechanic’s lien.

Plaintiff had judgment, from which apd from an order denying a motion for a new trial defendants, Annie T. Griffith and S. If. Griffith, appeal.

Defendant, Annie T. Griffith, is the wife of her co-defendant, S. If. Griffith. She owned lots 8 and 9, in block 70, of the city of Fresno, and her husband owned or had recently owned lots 161 and 162 of the Central California Colony, near Fresno.

On the 26th of February, 1890, the plaintiff, Joseph Spinney, entered into a written contract with the husband, S. If. Griffith, by which Spinney agreed to furnish the materials and build a brick building on said lots 8 and 9 in the city of Fresno, for . the sum of $3,940, and to accept in full payment therefor a mortgage executed by one W. D. Crichton for $4,000 on lots 161 and 162 in Central California Colony aforesaid. Crichton executed the mortgage to plaintiff in accordance with the contract, and the latter built the house, completing the same on or about June 1,1890. About the time of the completion of the building, plaintiff discovered that he had…