Miller v. Board of Education

— Under a contract with the defendant the plaintiff built a schoolhouse in the city of Sacramento. The building was completed and accepted, and this action is brought to recover a balance alleged to be due on the con *608 tract. The defendant pleaded payment, and this controversy arises in regard to the sum of fourteen hundred and fifty-two dollars and fifty cents, which was paid by the defendant to Avery on account of lumber sold by him to one Austin, a subcontractor under the plaintiff. The defendant claims that this payment was authorized by the plaintiff, or that the payment having been made for him, or on his account, was afterward approved and ratified.

Judgment was rendered for the defendant, and this appeal is from an order denying plaintiff’s motion for a new trial.

So far as the evidence is conflicting, the presumptions are in favor of the judgment, and the plaintiff relies for a reversal upon the evidence offered by the defendants and the evidence of the plaintiff so far as it is uncontradicted.

The only witnesses called by the defendant were Hill and Avery, both of whom were members of the board of education. Hill, who was city superintendent of public schools,…