Gilliam

This is an action upon a contract whereby plaintiff agreed to construct a ditch. The defendants are associated farmers of Kern county. The complaint charges them as partners in a certain ditch under the firm name of the Whitney Creek Ditch Company. Plaintiff avers that he and defendants entered into an agreement in writing, whereby he agreed to construct the ditch, for which defendants contracted to pay one thousand dollars; that he constructed the ditch, and defendants accepted it as complete, but have not paid.

The defendants, besides their denials of plaintiff’s allegations, aver that plaintiff contracted to make an open cut along a described line from Whitney creek, at a depth below the creek, and of capacity sufficient to carry all the Water that Whitney creek contains at all times into the south fork of Kern river, to complete the work within two years, and to maintain such cut in such condition that it will divert and carry all the waters of the creek for two years after the completion thereof, and they charge that he has failed to perform this contract.

The only evidence of a written contract at the trial •consisted of a written proposal for bids, signed by certain…