Stowell

This case resembles Miller v. Wadding-ham, 91 Cal. 377 . In fact the building contract is the same in both cases. Clubine contracted with the defendant, Newman, to build certain houses, six upon land he had contracted to purchase from Miller, and six on the land purchased from plaintiff. The buildings were alike, and all were building at the same time.

Clubine had a contract with plaintiff to purchase from plaintiff about twenty acres of land in the town of Ontario. He was not given possession under the contract, except that he was authorized to divide the land into *8 blocks and lots. He might sell lots at not less than a fixed price, and plaintiff would make the deeds and receive the purchase money. The contract price for the land was eighteen thousand five hundred dollars, and the plaintiff testified that he had received of this about five thousand dollars.

Clubine failed to make the payments agreed upon, and asked for an extension of time, and promised to have some buildings erected upon the land, and thereupon the time was extended.

The contract price for the buildings to be erected by Newman upon the land purchased from Stowell was four thousand one hundred dollars,…