Stock v. Thiele

THE COURT.

This is an appeal by the defendant from an order denying his motion for a new trial in an action brought by the plaintiffs in the form of the common count for labor performed and materials furnished, and in which the plaintiffs recovered judgment.

It will be necessary for us to pass upon but one of the points discussed in the briefs.

The plaintiffs, being copartners, by a written contract with the defendant, undertook to do the plumbing work on a certain building in Palo Alto, and were engaged upon said work when the building was destroyed by an earthquake, and the question for determination is as to whether or not, under the terms of the contract, they are entitled to recover a judgment against the defendant for the full value of the work

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already done at the time of said destruction, or only the proportion thereof for which payment was at that time due.

The answer to this question depends upon the construction to be given to clauses 5 and 12 of the contract. Those clauses read as follows :

5. “The owner agrees to pay to the contractor the sum of $3495 at the time and in the manner following, to wit: Seventy-five per cent of said $3495 as the work progresses; twenty-five per cent of the said $3495 thirty-five days after acceptance of the work. ’ ’

12. “In case said work herein provided for should, before completion, be wholly destroyed by earthquake or other acts of God, then the loss occasioned thereby shall be sustained by the owner to the extent that he has paid installments thereon, or that may be due under the fifth clause of this contract, and the loss occasioned thereby, and to be sustained by the contractor, shall be for the uncompleted portion of said work upon which he may be engaged at the time of the loss and for which no payment is yet due under said fifth clause of this contract.”

While the contract contained no provision for specific periodical payments, no doubt payments were made as the building progressed, although under the terms of the contract the plaintiffs were entitled to be paid seventy-five per cent of the value of the work performed as fast as it progressed and from day to day. A contract identically like this one was before this court in the case of