Hearte

This is an appeal from a judgment in favor of plaintiff following the verdict of a jury in an action brought to recover damages for breach of contract. Gener ally, the facts material to the opinion are: That plaintiff and defendant entered into a written contract whereby plaintiff agreed to grade certain streets in the city of Los Angeles in accordance with plans and specifications which were made a part of the contract, and defendant agreed to pay plaintiff therefor, on the 1st and 15th of each month, eighty per cent of the engineer’s estimate of the work done, the balance of twenty per cent to be reserved until thirty days after the completion of the contract. The total contract price was not named, but when the sum of $3,741.30 had been paid in cash, the balance was made payable in land, seven distinct lots being described for that purpose. It is claimed on behalf of plaintiff that defendant in various ways delayed plaintiff in the performance of his contract and had failed to make the progressive payments when due, but it is not alleged in any of the first eight causes of action whether the contract was wholly or partially performed, or whether the contract was breached or…