ARTHUR J. O'BRIEN, Appellant, v. P. G. MOLINARI, Respondent

[Civ. No. 736. First Appellate District. March 2, 1911.] ARTHUR J. O’BRIEN, Appellant, v. P. G. MOLINARI, Respondent. Building Contract—Order op Contractor—Conditional Acceptance —Abandonment op Contract-—Completion by Owner—Liens Prorated— Nothing Due Contractor.—Where an order by a contractor to the owner to pay a subcontracting plasterer was conditionally accepted to be paid out of the completion payment, but the contractor abandoned the contract, and the owner was compelled to complete it, and the residue of the contract price was distributed pro rata among lienholders, including the lien of the plasterer, in satisfaction of their liens, and there was no residue due to the contractor, there was no 'further liability on the part of the owner to make any further payment to the plasterer- under such conditional acceptance. Id.—Case Determined upon Authority op Preceding Case.—It is held ' that the questions of law involved in this appeal are substantially the same as those involved in the preceding case of O’Brien v. Garibaldi, Civ. No. 725, supra, and this ease is determined upon the authority of that case, except that this case is decided correctly by the trial court, upon the facts and the law, which requires affirmance. 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. Trontt, Judge. The facts are stated in the opinion of the court. Sullivan & Sullivan, and Theo. J. Roche, for Appellant. Costello & Costello, for Respondent. [MAJORITY — LENNON, P. J.] LENNON, P. J. 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 ease, with but slight and immaterial variations, ’ are the same. The question of law upon this appeal having been disposed of in the ease 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.