Knapp

Defendants appeal from the judgment and from an order denying a new trial in an action brought to foreclose liens of materialmen. Two points are made, based upon-the following allegations in the complaint: “That said contract does not provide that at least twenty-five per cent of the whole contract price shall he payable at least thirty-five days after the final completion of the contract, as by statute in such eases made and provided; that the drawings and specifications referred to in said contract were never identified by the signature of the *81 parties to said contract as provided in said contract should be done.”

The contract provides that the last payment "shall be made' within thirty-six days after this contract is fulfilled.” It is said that under this provision the payment is due at any time within-the period of thirty-six days that the owners may be willing to-make the payment, although by the terms of the contract payment could not have been compelled.

The materiality of the point arises from provisions in sections 1183 and 1184 of the Code of Civil Procedure,requiring the contract to be in writing and filed in the recorder’s office before the work is commenced, and…