O'Connell

This action is based upon two contracts, and the complaint contains two counts or causes of action. The first is upon an account stated for materials furnished, and as to it no question is raised, t The second cause of action arises upon a contract by which plaintiffs agreed to perform certain work, according to the plans and specifications, and furnish certain materials for the construction of a hotel which defendant was then building at Los Angeles, and for which defendant agreed to pay forty thousand dollars. Plaintiffs were to manufacture and deliver at the building all the iron-work required above the basement.

After plaintiffs had furnished a small portion of the material contracted for, defendant became embarrassed and asked for delays, and finally failed to resume work upon the proposed hotel, or to receive any further ma *518 terial from plaintiffs. Plaintiffs, at the request of defendant, suspended work, and now sue for damages resulting from a breach of the contract.

Plaintiffs recovered judgment, and the defendant moved for a new trial. It is objected that the court had no jurisdiction to entertain the motion, because, as plaintiffs claim, no notice of intention to…