Denison

This is an appeal from the judgment rendered against defendants in an action for the foreclosure of a materialman's lien. The facts were stipulated, and upon them the court rendererd the judgment complained of. The stipulation of facts is under agreement of the parties made a part of the judgment-roll, and may here he considered as the findings upon which the judgment was based. (Muller v. Rowell, 110 Cal. 318 .)

Defendant Metcalf had entered into a contract with defendant Burrell whereby he agreed to erect a frame cottage for the latter. The price was the sum of seven hundred and sixty dollars, payable, under the terms of the contract, upon the completion of the building by Metcalf and its acceptance by the owner. Metcalf proceeded with the work until the sixteenth day of April, 1895, when he abandoned it. At the time of the abandonment his contract was half completed. Plaintiffs, materialmen, had furnished material to Metcalf to the value of two hundred and forty-three dollars and sixty cents, which material was actually used in the construction of the building. Upon April 20th Burrell served notice upon Metcalf declaring his willingness and ability to per *182 form his part of…