to begin shipment of the warehouse building in six weeks and the forge shop in eight weeks, and in accordance with this promise the buildings should be coming along rapidly now."

Defendant claims that this correspondence shows a positive contract to ship the steel and iron work for the buildings at the times stated in plaintiff's letter and telegram of July 13th. We do not think it necessarily had that effect and that from the circumstances and the entire correspondence, the court below was warranted in holding that it did not. On July 13th the plans were not settled, many of them were not made, and plaintiff could not then know when they would be completed to the satisfaction of both parties. Until they were settled, plaintiff could not definitely know what it was to construct or how the material was to be fabricated. If the statements of July 13th had been in the positive language of a promise they could not be understood as anything more than a promise to begin and complete the shipments within the times stated, such time to be computed, not from the date of the statement, but from the time of the complete agreement on the plans. But in view of the uncompleted condition of the negotiations and of the plans at that time, it is more reasonable and natural to construe it as a mere estimate and not as a promise. The court below, as we understand, so interpreted the statement and we think it was correct. The subsequent conduct and letters of the defendant, at least suggests that this was its understanding, also, at that time. The result is that as no time was expressed, the law would imply an agreement to deliver within a reasonable time, or, as the court found, "as speedily as circumstances would permit."

4. There was sufficient evidence to support the finding that there was no contract or warranty by plaintiff that the floors of the warehouse should bear the weights above mentioned. The general plans sent to plaintiff by defendant showed a detail plan of the second floor, stating the weights to be carried thereon, and the accompanying letter also stated the same things. But plaintiff's advice was not asked on that point. Both the plan and the letter gave the sizes of the supporting beams for this floor, and beams of those sizes were furnished. The statements as to weights were apparently intended as information and not as a request for advice. The defendant was, and for years had been, engaged in heavy iron and steel

manufacture and professed to do the work of engineers therein. The inference is that it could and would judge for itself as to the sizes of beams required. It had a competent and experienced architect in its employ. There is nothing necessarily showing that the defendant was not, or did not consider itself, competent to determine the matter, or that it relied on plaintiff's advice or suggestions regarding it; or that plaintiff offered or undertook to give such advice. These observations also apply to the claim that the building was not sufficiently braced. Upon the latter point there is, moreover, a conflict of evidence, and sufficient evidence to sustain a finding in favor of plaintiff thereon, that is was properly braced.

5. Defendant contends that plaintiff cannot recover because of the minor defects in the materials on account of which the lower court deducted $1104.14. It cites on this point cases declaring that where one has contracted to erect a building or sell property for a price to be paid when he has fully performed his obligation, the contract being what is called an entire contract, he cannot recover on the contract, if he has himself failed to perform a substantial and material part of his own agreement. It is true that in such cases the party cannot prevail in an action technically on the contract for the price, but it is well settled, and the cases cited recognize the rule, that he may recover in a proper action, the reasonable value of the goods delivered to and retained by the buyer. (Katz v. Bedford, 77 Cal. 322, [1 L. R. A. 826, 19 Pac. 523].) If the plaintiff suing for the value, or for the price, has endeavored in good faith to perform his part of the agreement, and has substantially performed, but there are unimportant defects arising from accident or inadvertence, and which do not defeat or materially change the object of the contract, he may recover the price, less the damage caused by the defects. (Perry v. Quackenbush, 105 Cal. 308, [38 Pac. 740]; City St. I. Co. v. Kroh, 158 Cal. 325, [110 Pac. 933].) There is much doubt whether the contract was entire and indivisible as to either of the three structures involved. (See Sterling v. Gregory, 149 Cal. 120, [85 Pac. 305]; Los Angeles etc. Co. v. Amalgamated O. Co., 156 Cal. 779, [106 Pac. 55].) But conceding it to be so, the complaint counts upon the implied contract to pay the reasonable value of the materials furnished and the case falls within the rule last stated.

6. Our conclusion that the finding that the plaintiff did not agree to deliver the materials within a specific time, as alleged in the counterclaim and that there was no agreement that the second floor should bear certain weights, is sustained by the evidence, makes it unnecessary to consider the asserted errors of law in the admission or exclusion of evidence relating to the damages claimed to have been suffered by defendant from the failure to perform these alleged agreements, and also unnecessary to consider the rule as to the proper measure of damages from such breaches of contract or warranty, or as to the right to recover upon such contracts or warranties. There are no other points that require notice. The judgment is affirmed.

Angellotti, J., and Sloss, J., concurred.

[L. A. No. 2546. In Bank.-April 2, 1912.]

JOHN A. GORDON, Appellant, v. WILLIAM B. ROBERTS and JAMES A. ROBERTS, Copartners doing business under the firm name of Roberts Construction Company, and JAMES B. LANKERSHIM, B. LANKERSHIM, and ACHILLE

BIORCI, Respondents.

NEW TRIAL-AFFIRMANCE OF ORDER GRANTING.-Where a motion for a new trial was based on various grounds, and an order granting it was general in its terms, the order must be affirmed if it could have been granted on any of the grounds assigned.

ID. LIMITED REASONS FOR ORDER-REVIEW OF ORDER ON APPEAL-INSUFFICIENCY OF EVIDENCE.-Even if the court had undertaken to limit the reasons for granting the motion, the appellate court would not be precluded from considering any of the grounds which the trial court had excluded from view, except only the one of insufficiency of evidence. And this ground will also be looked to for justification of the order, unless the trial court has, by the express terms of its order, excluded it as one of the grounds for making the order.

ID.-ABUSE OF DISCRETION-CONFLICT OF EVIDENCE.-An order granting or denying a new trial for insufficiency of the evidence is conclusive upon the appellate court, unless there has been an abuse of discretion. And, if there is a substantial conflict in the evidence,

the trial court will not be deemed to have abused its discretion when it has determined that the verdict or the finding is against the weight of the evidence, and that there should be a new trial. ID. NEGLIGENCE TRESTLE FALLING WITHIN BUILDING BEING CONSTRUCTED INJURY TO PERSON ON SIDEWALK.-The mere fact that a person standing on a sidewalk in front of a building in course of construction was injured by the falling from within the building of a wooden trestle used in the building, is sufficient to make out a prima facie case of negligence on the part of the person responsible for the management of the trestle.

ID. INJURY TO PERSON UNLAWFULLY WITHIN BUILDING-WILLFUL OB MALICIOUS INJURY.-If, on the other hand, the person injured, without having any lawful business or occasion to enter the building, did enter it without invitation, and in defiance of warnings, and while therein was so injured, he would have no redress, unless his injury was the result of the willful or malicious act of the person responsible for the management of the trestle.

ID. EVIDENCE THAT PERSON INJURED WAS WITHIN BUILDING.-In the present case the evidence as to the situation of the plaintiff at the time of the injury is held to be in substantial conflict, and that there was sufficient evidence of the fact of his being unlawfully within the building at the time of the injury to warrant the trial court in granting a new trial on that ground.

APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. Frederick W. Houser, Judge.

The facts are stated in the opinion of the court.

Gavin W. Craig, and C. H. Slease, for Appellant.

M. E. C. Munday, for Respondents.

SLOSS, J.-The action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendants. The trial resulted in a verdict and judgment in favor of the plaintiff in the sum of two thousand dollars. The defendants Lankershim and Biorci moved for a new trial, and the court below made an order granting their motion. From this order the plaintiff appeals.

The complaint alleges that the defendant Lankershim was crecting a building in the city of Los Angeles; that the defendants Biorci and Roberts Construction Company were

employed by him in the construction; that while plaintiff was standing on the sidewalk in front of said building, he was struck and injured by a timber which, through the negligence of the defendants, fell from within the building. Lankershim and Biorci answered separately. It is sufficient for the present purpose to say that each of the answers denied that plaintiff had sustained injuries in the manner asserted by him, and averred that such injuries were received by plaintiff while he was, in disregard of warnings posted at the entrance, within the building as a trespasser, and were caused by the accidental tipping and falling of a trestle which was being used in the work of painting the walls.

The motion for new trial was based on various grounds. The order granting the motion was general in its terms. It must, therefore, be affirmed if it could properly have been granted on any of the grounds assigned. (White v. Merrill, 82 Cal. 14, [22 Pac. 1129]; Kauffman v. Maier, 94 Cal. 269, [29 Pac. 481]; Thompson v. California Constr. Co., 148 Cal. 35, [82 Pac. 367]; Wendling Lumber Co. v. Glenwood L. Co., 153 Cal. 411, [95 Pac. 1029]; Morgan v. J. W. Robinson Co., 157 Cal. 348, [107 Pac. 695].) Even if the court had undertaken to limit the reasons for granting the motion, the appellate court would not be precluded from considering any of the grounds which the trial court had excluded from view (Kauffman v. Maier, 94 Cal. 269, [29 Pac. 481]) excepting only the one of insufficiency of evidence. (Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, [7 Ann. Cas. 636, 83 Pac. 439]; Bresec v. Traction Co., 149 Cal. 131, [5 L. R. A. (N. S.) 1059, 85 Pac. 152].) And this ground will also be looked to for justification of the order granting a new trial, unless the trial court has, by the express terms of its order, excluded it as one of the grounds for making the order. (Weisser v. Southern Pacific Ry. Co., 148 Cal. 426, [7 Ann. Cas. 636, 83 Pac. 439]; Ben. Lomond Wine Co. v. Sladky, 141 Cal. 619, [75 Pac. 332]; Morgan v. J. W. Robinson Co., 157 Cal. 348, [107 Pac. 695].) As suggested, the order before us was not limited in any way, and it must, on this appeal, be treated as if granted on the ground of insufficiency of evidence, or any other ground assigned.

This court has frequently commented upon the wide extent of the discretion of the trial court in granting or denying a