Sahrbacher

Plaintiffs recovered judgment as materialmen and subcontractors foreclosing liens upon the building of defendant, and this appeal is taken from the judgment and order denying the motion for a new trial.

The contract price was four thousand dollars, payable in four equal installments as the work progressed. *116 The first payment was due when the building was framed, and the second payment when the brown coat of mortar was on. In due time the contractor received his first installment of the contract price, and, when the brown coat of mortar was on, demanded payment of the second installment. The owner refused to make the second payment, and thereupon the contractor declined to proceed further with the work, and the building was subsequently finished by third parties. Nonpayment of an installment of the contract price when due is such a breach of the contract as to justify a contractor in leaving the work and recovering upon a quantum meruit. (Porter v. Arrowhead Reservoir Co., 100 Cal. 500 .) Was the contractor entitled to receive the second installment of money? In other words, was the second installment due? And the answer to that interrogatory is solely dependent upon a…