Sweeney

This is a consolidated action for the foreclosure of certain liens of mechanics and materialmen.

Judgment passed for the plaintiffs, and the owners, Johanna and Antone Meyer, appeal from that judgment and from the order denying a new trial.

1. The contract specified the times during the progress of the work when the partial payments were to he made. The court found that the third and fourth of these payments were made prematurely and in advance of the terms of the contract, and prior to the time when due, and were, therefore, invalid as payments for the purpose of diminishing or discharging the liens or any of the liens involved in the action.

By the mechanics’ lien law "no payment made prior to the time when the same is due, under the terms and conditions of the contract, shall be valid for the purpose of defeating, diminishing or discharging any lien in favor of any person except the contractor, but as to such liens such payment shall be deemed as if not made, and shall be applicable to such liens.” (Code of Civil Procedure, sec. 1184.) By the same section it is also provided that a written notice may be served upon the owner by one who has performed labor or furnished…