one or other of plaintiffs' remaining theories, it must be reversed.

Plaintiffs' second theory was that the original contract was rendered void by reason of the alterations in the plans adding so materially to the cost of the buildings. The contract contained the provision quoted above, by which the owner was given the right to make any alterations he might wish to make "from said contract, specifications or plans," which, when made, "shall in no way affect or make void the contract, but will be added to or deducted from the amount of said contract price, as the case may be, by a fair and reasonable valuation." Notice of the provision of the contract was given to all parties concerned by its recordation, and nearly all of them furnished some of the materials or labor constituting these alterations, and no objection was made to any claim, because it was for extras. It would be difficult to express in language more explicit authority to deviate from the plans and specifications than is found in this contract. So far as lien claimants are concerned, alterations are immaterial except where there is an abandonment, and in such case they may be considered in ascertaining the cost of completing the buildings according to the contract, for the contract so expressly provides. (Johnson v. La Grave, 102 Cal. 324, [36 Pac. 651].) That the owner may provide in his contract for changes or alterations in the building during its construction without invalidating the contract, we do not doubt.

Witness Quinn, manager of plaintiff Pacific Manufacturing Company, was asked by plaintiffs' attorney whether or not there were changes or alterations made in the construction of the buildings prior to abandonment, and if so, to state what, if any, there were. "A. One of the changes made was in the cornice of the building. The owner took exception to it for some reason or other, and caused the cornice to be torn down and a new cornice was put up in place of it. Another change was made in the pergola after that was in place. The owner .. objected to the use of beams and had that torn down and a new pergola put in place. And then the owner was dissatisfied with the quality of brick used in the construction of the building and had a special brick manufactured. There were other changes of a minor character. . . . Q. Were there any changes in the interior arrangement of the house, the rooms, to your knowledge? A. No material changes." He testified

as to some changes made after abandonment, but we cannot see that they would affect the question of the lienors' rights at the time of abandonment, for they would be taken into account in ascertaining the cost of completion under the contract. Other witnesses pointed out some changes made in the course of the construction of the building.

The contract called for a "brick veneered and frame residence and garage.' "" The court found that the reasonable value of the changes made, in materials and labor, was $3,866.28; that while said changes did not materially alter the elevations and appearances of said buildings, the same consisted in the use of more expensive material, greater increase in labor, and necessitated the tearing out and replacing of certain work done and performed in the buildings, thereby changing the interior construction as to value and character of materials, and to a certain extent in general appearance.

We do not think that the facts found justified the conclusion of the trial court that the contract was void.

Plaintiffs' third theory calls for the application of section 1192. This claim is that this section of the Code of Civil Procedure makes the title and interest of defendant Winifred absolutely responsible irrespective of the contract, and that the findings and judgment may rest entirely on the fact that she did not give the notice contemplated by section 1192.

Plaintiffs allege in their complaints that "said defendant R. A. Perry, acting for himself and on behalf of the said defendant Winifred A. Perry and with her full knowledge and consent, entered into a contract in writing with the said defendant Magneson," etc. In their answers defendants admit these averments of the complaints.

The finding of the court was, "that defendant R. A. Perry is and was at all times herein mentioned, the reputed owner of the hereinafter described land, buildings and premises, and that Winifred A. Perry is and was at all times herein mentioned, the real owner, to wit, the owner in fee," etc.

The court also found that during all the time that labor was being performed or materials being furnished for said buildings, said defendant Magneson was employed and engaged in the construction of said buildings by the said R. A. Perry with the full knowledge and consent of the said defendant Winifred A. Perry, "and that all the materials furnished

or labor performed" was furnished and performed “with the knowledge and consent of the said Winifred A. Perry."

There was no direct finding that R. A. Perry executed the contract as the agent of his wife, Winifred, nor was there any evidence that she personally contracted with Magneson. The admitted averments of the complaint that defendant R. A. Perry entered into the contract on her behalf, and with her full knowledge and consent, rendered any finding on the fact of his authority to act for her in the matter immaterial. And the finding that "the said Winifred A. Perry never made or entered into any contract in writing with the said defendant R. A. Perry and one Magneson, or either of them, relating to the construction of said buildings," is not inconsistent with the fact that her husband entered into the contract on her behalf and with her full knowledge and consent.

It was said in Stimson Mill Co. v. Braun, 136 Cal. 122, 125, [89 Am. St. Rep. 116, 57 L. R. A. 726, 68 Pac. 481]: "The materialman and the laborers are protected in their right to a lien by the provision in section 1183 of the Code of Civil Procedure, requiring such contract to be in writing and made a matter of public record. They know that, in accordance with the decisions of this court, the legislature cannot give a right of lien to an extent greater than the contract price. By being placed upon record the contract is open to their inspection and examination, and if they are not content with its provisions, they may decline to furnish any materials for the building or perform any labor thereon. But if they do furnish any, their right to a lien must be limited by the terms of the contract." And as was said in the Roystone case, supra: "The contract, legally made, limits the liability of the owner to lien claimants."

In the present case there was a valid contract made on behalf of the owner and with her knowledge and consent, and it seems to us that the owner was not obliged also to give notice under section 1192 of nonresponsibility, in addition to the recorded contract, in order to secure the protection given her by the statute. We have found no case where our supreme court has held that lien claimants may disregard the recorded contract of the owner and proceed against him under section 1192, unless he has also given the notice mentioned in that section. Where the contract is made on his behalf and with his knowledge and consent and is recorded, and the lien claim

ants so state in their complaints, we can see no reason why the contract should not be the measure of his liability. In short, the owner's liability under section 1192 does not attach when there is a valid recorded contract made in his behalf.

Some other questions are presented in the briefs, but the view we have taken renders their consideration unnecessary.

The learned trial court seems to have found the amount due on the claims upon the theory that the contract was void because of the alterations in the plans and that the owner was liable under section 1192. We think the contract was valid and the owner's liability should be measured by section 1200. The judgment and order are reversed.

Hart, J., and Ellison J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 23, 1916.

[Civ. No. 1489. Third Appellate District.-August 25, 1916.]

LOUIS BRESLAUER, Respondent, V. MCCORMICKSAELTZER COMPANY (a Corporation), Appellant.

ACTION FOR PERSONAL SERVICES

AMOUNT OF COMPENSATION - PAYMENT OF EXTRA SALARY OUT OF SECRET FUND-EVIDENCE-SUPPORT OF FINDINGS.-In an action to recover an alleged balance due on account of salary as chief clerk and accountant of a general merchandise business, the amount of such salary entered on the books of the company and the receipted card in full for salary is not conclusive evidence of the amount of the plaintiff's compensation, where it is made to appear from the evidence that the plaintiff had for several years been paid an additional amount out of a "secret fund," and that such fund was a recognized part of the machinery of the company kept for paying extra salaries to good employees. ID.-EVIDENCE-RECEIPT.-A receipt is never conclusive evidence, but is always open to explanation.

APPEAL from a judgment of the Superior Court of Shasta County. James G. Estep, Judge.

The facts are stated in the opinion of the court.

Carr & Kennedy, for Appellant.

W. D. Tillotson, for Respondent.

ELLISON, J., pro tem.-This action is brought by the plaintiff to recover of the defendant the sum of $375, balance alleged to be due on account of salary from February 28, 1914, to May 1, 1915.

Plaintiff has judgment for the amount claimed and the defendant appeals therefrom.

The complaint alleges that between the above dates plaintiff rendered services for defendant at its instance and request, each and every month, in the capacity of chief accountant and clerk.

That for said services defendant promised to pay him at the rate of $175 per month, which salary for said time amounted to $2,625.

That defendant had only paid him of said amount the sum of $2,250, leaving a balance due him of $375, which had not been paid and for which judgment is asked.

The answer denied that plaintiff's salary was fixed by agreement at $175 per month, but alleged it was fixed at $150 per month, and alleges that during said period of employment "the plaintiff received and accepted from defendant in payment of said salary the sum of $150.00 for each and every month of said time, amounting for said period to the total sum of $2,250.00, and alleges that said salary has been fully paid and satisfied."

The findings of the court followed closely the allegations and language of the complaint.

The principal contention of the appellant is that the finding of the court "that for plaintiff's services the defendant promised to pay him $175.00 per month," is not sustained by the evidence. That the evidence shows he was only to receive $150 per month, and that this amount has been fully paid to him.

It appears from the record that the defendant is engaged in the general merchandise business in the city of Redding, Shasta County, California, and has in its employ many persons. The plaintiff entered the employ of the defendant in