Flynn

This is an appeal from a judgment of nonsuit and from an order denying plaintiff’s motion for a new trial. The complaint alleges, in substance, that in July, 1886, the plaintiff contracted with the defendant to cut, furnish and deliver to the defendant the stone required for the construction of the state asylum about to be erected in the county of Santa Clara, for the sum of $6,883; that plaintiff was at all times ready and willing to perform the contract on his part, but that the defendant refused to accept the stone, and gave plaintiff notice of such refusal, and prevented plaintiff from performing the contract, and wholly repudiated it, to the damage of plaintiff in the sum of $2,000. The answer specifically denied each allegation of the complaint. Upon the trial, the plaintiff testified that on the ninth day of July, 1886, he presented to the defendant a bid or offer in writing, of which the following is a copy:

Plaintiff admitted that there was no contract or memorandum in writing between him and the defendant for the stone-work mentioned in the complaint; and further testified that the defendant was himself bidding for the construction of the state asylum at Agnew station,…