Hettinger

This action was brought to recover the amount claimed to be due to the contractor under the terms of a contract for a building which was in the course of construction and uncompleted on the eighteenth day of April, 1906, at which time it was wholly destroyed by the great earthquake. The ease was tried with a jury, to whom special issues were submitted, and upon the verdict as to such special issues judgment was entered in favor of the plaintiff.

No serious question is raised as to the sufficiency of the evidence to justify the finding of the jury upon any question submitted to it. Some questions of law are discussed, particularly as to instructions given to the jury, or offered by the defendant and refused.by the court, but they all depend upon the main question as to the construction to be placed upon the contract; and as the ease turns upon such construction we will discuss that and nothing more.

The contract was one by which the plaintiff agreed to build for defendant a building therein described in the town of Palo Alto for the price of $21,965. It undertook to provide for the apportionment of the loss as between the owner and the contractor in case the building, during its…