Spinney

Action to enforce a materialman’s lien for the value of a quantity of brick furnished and used in the erection of a certain building. By way of cross-complaint and ground for affirmative relief, the defendant. Downing set up that he and the plaintiff entered into a certain contract whereby plaintiff agreed to furnish and deliver to said defendant all the brick required for the construction of the building, the brick to be of a certain quality, and at a specified price per thousand; that plaintiff delivered a portion only of the brick so contracted for, and then neglected and refused to deliver any more, whereby defendant was compelled to procure brick for the completion of the said building elsewhere, and at a higher price per thousand, to defendants’ damage, etc., for which he prayed judgment.

Judgment went against plaintiff, and from the judgment and an order denying him a new trial he appeals.

*668 We think it clear that the alleged contract counted upon by defendant Downing in his cross-complaint never became a completed contract. It appears without conflict that it was the understanding and agreement between the plaintiff and Downing that the proposed contract should be…