Opinion
Civ. No. 736.
March 2, 1911.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. James M. Troutt, Judge.
The facts are stated in the opinion of the court.
Sullivan Sullivan, and Theo. J. Roche, for Appellant.
Costello Costello, for Respondent.
This is an appeal by the plaintiff from a judgment entered in favor of the defendant Molinari, and from an order denying plaintiff's motion for a new trial.
The action was brought to recover the amount specified in an order drawn by J. M. Jackson, in favor of the plaintiff, upon and accepted by the defendant P. G. Molinari.
The order and acceptance are as follows:
"San Francisco, Cal. Feby. 1st, 1907.
"Dear Sir:
"Please pay the bearer, Mr. A. J. O'Brien, the sum of six hundred and ninety-six dollars, the same being for the plastering of your property located on Broadway street, between Kearny and Dupont streets.
"J. M. JACKSON."
"I will accept this order, and deduct the amount from next payment due on my building.
"P. G. MOLINARI."
The answer of the defendant Molinari was, substantially, that the order and its acceptance related to and were dependent upon the performance of a building contract existing at the time between Jackson and the defendant Molinari; that Jackson abandoned the building and failed to comply with the terms of the contract; that in consequence of this breach on the part of Jackson no money ever became due to Jackson out of which a payment of the money called for in the order could be made to O'Brien.
The findings of the court upon all of the material issues were in favor of the defendant Molinari; and they are fully sustained by the evidence offered and received upon the trial. This case and the case of O'Brien v. Garibaldi, numbered 725 in this court, and this day decided, wherein the judgment of the trial court is reversed, were tried and determined together. The parties in both cases, with the exception of the owners, are identical, and the facts of each case, with but slight and immaterial variations, are the same. The question of law upon this appeal having been disposed of in the case of O'Brien v. Garibaldi, above mentioned, adversely to the contention of the plaintiff, it follows that the judgment and order here appealed from must be affirmed. It is so ordered.
Kerrigan, J., and Hall, J., concurred.