Rauer

This is an action to foreclose a lien for street work performed under a private contract, and in which a lien was filed pursuant to section 1191 of the Code of Civil Procedure.

Plaintiff had judgment, from which, and from an order denying his motion for a new trial, defendant appeals.

The complaint is in the usual form; pleads a contract between defendant and one J. Gr. Duffy, the assignment *364 thereof to plaintiff by Duffy, the performance of the work by plaintiff, and the filing of the lien, etc. The contract and the contents of the lien are pleaded according to their legal tenor and effect, and not in hsec verba.

The complaint counts upon a contract to grade the south half of Chestnut street, from Jones street to Leavenworth street, San Francisco.

The answer, after denying a number of the allegations of the complaint, proceeds to aver that prior to April, 1892, defendant had procured to be graded all the portion of Chestnut street in front of his property by third parties, and had paid therefor; that portions of the street in front of property of other parties remained ungraded; that Duffy desired defendant to sign a contract with him for the grading of the whole of…