question put by the defendants upon cross-examination to the witness Ayres. The question was: "As a director of the company, you understood and learned by your agents that the diversion of water had been interrupted, didn't you?" Plaintiff had sought to prove by the witness on his direct examination that it (plaintiff) had used the water through the south channel of Cole Slough, and Dutch John Cut, without interruption. The question was pertinent, and clearly within the line of cross-examination, and if answered in the affirmative, would have charged the plaintiff with knowledge of such interruption,—which was the purpose of the question.

Respondent makes a separate point as follows: "Plaintiff has acquired the right, by adverse enjoyment and use for the period of five years, to divert one hundred cubic feet of water per second from Kings River."

The contest in this case is not so much as to the quantity which plaintiff has the right to divert from Kings River, as it is to the question of plaintiff's right to augment the quantity in Kings River by diverting from Cole Slough at a time when the water is so low that it would not naturally flow into Kings River therefrom. For this reason it is not necessary for us to say more than we have already done on the question of quantity. The quotations which counsel makes from the testimony of his witnesses sustain us in what we have said on that subject, and they do not sustain the plaintiff in its claim of right to augment the flow in Kings River by an unnatural diversion of the waters of Cole Slough.

Holding, as we do, that the evidence fails to show that the defendants have obstructed or diverted, or intend to obstruct, divert, or turn aside, the waters which in their natural flow would flow down through Cole Slough into Kings River at or above the head of plaintiff's ditch, or have done or intend to do anything more than to prevent such natural flow being changed or diverted by the act of plaintiff, and that plaintiff has been and is estopped

from changing or claiming the right to change the natural flow thereof, it follows that the judgment and order appealed from must be reversed.

So ordered.

MCFARLAND, J., SHARPSTEIN, J., THORNTON, J., concurred.

PATERSON, J.-I concur on the second ground discussed by Mr. Justice Fox, viz.: That the record in Heilbron v. The Last Chance W. D. Co. established an estoppel in favor of the defendants and against the plaintiff herein.

WORKS, J.-I concur in the judgment.
Rehearing denied.

[No. 13600. In Bank.-September 13, 1890.] KERCKHOFF-CUZNER MILL AND LUMBER COMPANY, RESPONDENT, v. GEORGE CUMMINGS ET AL., APPELLANTS.

MECHANICS' LIEN-BUILDING CONTRACT-CONSTRUCTION OF CODE.— The provisions of section 1184 of the Code of Civil Procedure, relative to the mode of payment of the contract price of a building, do not apply to such contracts when the price does not exceed one thousand dollars, but only to such contracts when the price exceeds that sum. ID. WITHHOLDING PRICE FROM CONTRACTOR

NOTICE - DISCHARGE OF REPUTED OWNER.-No part of the contract price under a building contract, when the price does not exceed one thousand dollars, need be withheld by the reputed owner, and he may pay the whole of it to the contractor before the commencement or after the completion of the work, unless the notice prescribed in section 1184 of the Code of Civil Procedure is given in time to intercept the money in the hands of the reputed owner, otherwse the payment of it to the contractor in accordance with the terms of the contract will operate as a complete discharge as far as the reputed owner is concerned.

ID.-DEFENSE TO LIEN OF MATERIAL-MAN-SUFFICIENCY OF ANSWER. -Averments of an answer in an action by a material-man to foreclose a lien upon a building that the contract between the owner of the building and the contractor was verbal;

that the price to be and that was paid thereunder was less than one thousand dollars; that it was to be and was paid every Saturday night as the work progressed; that the last installment was paid upon the completion of the work; and that the only notice that the owner received from the plaintiff was about one month after he had paid the contractor in full,-are sufficient to constitute a defense on the part of the owner of the building against the claim of lien on the part of the material-man.

APPEAL from a judgment of the Superior Court of Los Angeles County.

The facts are stated in the opinion.

Wells, Guthrie & Lee, for Appellants.

Graves, O'Melveny & Shankland, for Respondent.

GIBSON, C.-The plaintiff furnished certain building material of the value of $429.87 to the defendant Singer, for the alteration and repair of a dwelling-house owned by the other defendant, Cummings, who had contracted with Singer to have him alter and repair said dwellinghouse, and furnish the necessary material therefor. To recover the value of the material so furnished of Singer, and to enforce a lien claimed therefor upon the house of Cummings, this action was brought, and resulted in a personal judgment against Singer, who defaulted, and a foreclosure of the lien claimed upon the property of Cummings. From the judgment so rendered against him Cummings appeals.

The appellant in his answer set up as a separate defense that he entered into a verbal contract with Singer, by which Singer was to make certain repairs on the appellant's house, and furnish material for the same, for the sum of $451, portions of which sum were to be paid every Saturday night as the work progressed; that while the work was being done, payments were made, and after it was completed Singer was paid in full; that during the performance of the contract by Singer, the respondent did not serve any notice upon the appellant to

the effect that it had furnished material for the building to Singer, but that about one month after the work had been completed, and the appellant had paid Singer, the contractor, in full, the respondent notified the appellant that there was a certain amount due for material furnished to Singer; that appellant thereupon notified respondent that Singer had been paid in full, and there was nothing due from the appellant to him. To this portion of the answer the respondent demurred, upon the ground that it did not constitute a defense to the action. The demurrer was sustained, and the trial was had with such portion of the answer eliminated.

The ruling thus made presents the only question in the case, as to whether notice is necessary from the material-man to the owner, in cases where the contract price does not exceed one thousand dollars, in order that the owner may be required to hold back sufficient money due or that may become due the contractors to meet the claim of the material-man, and satisfy any lien he may file therefor.

The respondent, in support of the ruling of the court below sustaining the demurrer to the answer, contends that all contracts between the reputed owner and the contractor, whether the price to be paid thereunder exceeds one thousand dollars or not, as provided for in section 1183 of the Code of Civil Procedure, are subject to and controlled by section 1184 of the same code, which requires the price, payable under contracts be tween the reputed owner and the contractor, to be paid in money, and in installments after the commencement of the work, and the reservation of one installment of at least twenty-five per cent of the whole price for at least thirty-five days after the completion of the work; and that the contract price under the contract in this case having been made payable in a manner different from that prescribed by section 1184, the contract was of no effect as to respondent, and the only notice it (respond

ent) was required to give was the filing of the lien within the proper time.

This contention is contrary to the doctrine of Sidlinger v. Kerkow, 82 Cal. 42. In that case, it was held that the provisions of section 1184, relative to the payment of the price payable under contracts between the reputed owner and contractor, do not apply to such contracts when the price does not exceed one thousand dollars, but only to such contracts when the price exceeds that sum; and that a contract in which the price to be paid does not exceed the sum last mentioned is effective as to all persons who may perform labor for or furnish material to the contractor, or both. This being so, it is clear that no part of the contract price under such a contract need be withheld by the reputed owner; and he may pay the whole of it to the contractor before the commencement or after the completion of the work, unless the notice prescribed in section 1184 is given. That section provides that any person, except the contractor, who performs labor or furnishes material, or both, may at any time give to the reputed owner a written notice containing the requisite specifications that he has performed labor or furnished material, or both, to the contractor or other person acting by the authority of the reputed owner, or has agreed to do so. "Upon such notice being given, it shall be the duty of the person who contracted with the contractor to and he shall withhold from his contractor, or from any other person acting under such reputed owner, and to whom by said notice the said labor or materials, or both, have been furnished or agreed to be furnished, sufficient money due or that may become due to such contractor or other person, to answer such claim, and any lien that may be filed therefor for record under this chapter, including counsel fees not exceeding one hundred dollars in each case, besides reasonable costs provided for in this chapter."

This notice must be given in time to intercept the