Birch

In March, 1890, William H. Birch and Company entered into a written contract with the defendant to erect for him in the building situate at the northwest corner of McAllister and Larkin Streets, San Francisco, a safety hydraulic passenger elevator, and to furnish the pumps and. machinery necessary to be used therewith. The contract fixed the price to be paid for the elevator at $1,200, and the parties verbally agreed that the price of the deep-well pump to be put in the cellar of the building should be $565. Before the work was completed Birch and Company assigned the contract and all their rights under it to the plaintiff, and he thereupon proceeded with the work and finished it about April 1, 1891.

Under the contract and pursuant to its provisions, the defendant paid to the contractors sums of money aggregating $4,162. The plaintiff brought this action to recover the balance alleged to be still due and unpaid.

The answer denied that defendant was indebted to plaintiff in the sum named, or in any sum whatever, and alleged payment in full. It then set up as a defense, that the work upon the elevator and its appurtenances was done in such an unskillful and negligent manner that…