Barilari v. Ferrea , 59 Cal. 1 ( 1881 )

The Court:

1. The demurrer was properly overruled. The averments with respect to the lien are sufficient.

2. The finding as to lien is sufficient.

3. The notice of lien shows by whom plaintiff was employed. The contract for extra work and the extension of time were not legally required to be in writing.

4. We think the Court below should not have stricken out thé-testimony of Giovanni Ferrea: . “ The . upstairs is done with the very poorest kind of material; very rough all the work done upstairs.” But afterwards on cross-examination the same witness said: “ The worst kind of stuff he used upstairs and cheap.” The objection to his testimony with respect to boilers was sustained on the ground that there was nothing in the contract about boilers. No similar exception is preserved- in the bill with reference to testimony of Angelo Ferrea.

5. The objection was properly sustained to the question: “ I will ask you, if with the money you paid and five hundred dollars damages, whether the whole amount of the contract work, and the extra work was paid ?” The question assumed five hundred dollars damages,- a matter in .dispute. What was paid was a matter for the jury to determine.

Judgment and order affirmed.