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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 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 :

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…