Of course, upon the going down of the case for a new trial, the amendment to the statute just quoted will be the statute in force at the time of the trial, and therefore will cover and control the question of the admissibility of the evidence of the physicians who attended the deceased. It may not be amiss, however, to say that the amendment last referred to indicates that the legislature has finally concluded that "in actions for personal injury the permission to claim the privilege is a burlesque upon logic and justice." (4 Wigmore, sec. 2389, p. 3359.)

Judgment reversed and cause remanded for a new trial.

Richards, J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1918.

[Civ. No. 2150. First Appellate District.—December 31, 1917.] T. B. HUBBARD, Respondent, v. A. JURIAN et al., Appellants.

MECHANIC'S LIEN-PAYMENT OF MONEY TO CONTRACTOR AFTER NOTICE TO WITHHOLD - EFFECT OF CODE AMENDMENT. - Under the amendment of 1911 to section 1184 of the Code of Civil Procedure (Stats. 1911, p. 1315), providing that it shall be lawful for the owner to withhold from the contractor sufficient money due or that may become due to answer the claim of any lien for labor or material furnished to the contractor, it is not mandatory upon the owner to withhold payment after notice, and the doctrine of "premature payments" as formerly applied in mechanic's lien cases has no application to such a case.

ID.-FILING OF LIENS-TIME.-The limit of time fixed by statute for the filing of mechanic's liens where no notice of completion or cessation from labor has been filed is ninety days after the actual completion of the building.

ID. CESSATION FROM LABOR-TIME FOR FILING LIENS.-The time allowed for filing mechanics' liens where there has been a cessation from labor is ninety days after the expiration of thirty days from the date of such cessation or, in other words, one hundred and twenty days after the actual cessation from labor.

ID. COMPLETION BY OWNER-TIME FOR FILING LIENS NOT EXTENDED.— The subsequent completion of a building by the owner after a

thirty-day cessation from labor thereon, by the contractor, does not operate as an extension of time for filing liens.

ID. INTEREST ON LIEN CLAIMS TIME. Interest on lien claims for labor and material furnished under contracts fixing no time of payment should be allowed from the time of the commencement of the actions to foreclose the liens.

ID. CONSTITUTIONALITY OF SECTION 1183, CODE OF CIVIL PROCEDURECHANGES IN BUILDING CONTRACT WITHOUT RELEASING SURETY.— The provision of section 1183 of the Code of Civil Procedure that no modification of a building contract between the owner and the contractor shall relieve the surety on the bond required to secure payment of lien claims is not unconstitutional.

ID.

MODIFICATION OF

A contract for the

CONTRACT FOR SECOND STORY TO BUILDINGORIGINAL CONTRACT-FILING UNNECESSARY. construction of a second story to be added to a building in course of construction is a modification of the original contract not required to be filed.

ID.-PREMATURE PAYMENT ON CONTRACT SURETY ON BOND NOT RELEASED. The surety on a bond given to secure the performance of a building contract pursuant to section 1183 of the Code of Civil Procedure is not released by the premature payment of an installment of the purchase price by the owner to the contractor, in view of the provision of such section that no modification of the contract between the owner and the contractor shall relieve the surety. ID. RECOVERY ON BOND-PERSONS ENTITLED.-Only those laborers and materialmen who have perfected their claims by filing verified liens within the time specified by the statute are entitled to recover upon the bond given pursuant to section 1183 of the Code of Civil Procedure.

APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. W. A. Beasly, Judge.

The facts are stated in the opinion of the court.

Rogers & Bloomingdale, for Appellants Jurian et al.

James Walter Scott, for Appellant Maryland Casualty Co. Beggs & McCormish, for Respondents Hubbard et al.

R. V. Burns, C. L. Witten, and H. W. McComas, for Respondent Guth.

John W. Sullivan, for Respondent Mathewson.

Owen D. Richardson, for Respondent Minton.

LENNON, P. J.-These are consolidated actions for the foreclosure of several liens, claimed for labor and materials furnished in the erection and construction of a building upon the premises of the defendants Odell and Jurian.

The facts are as follows: On the twenty-third day of September, 1912, the defendants Odell and Jurian entered into a written contract with one H. A. Spreen for the erection by the latter of a one-story concrete building upon the premises of said defendants for the contract price of $5,260, payable in four installments, as follows: First payment of $1,315 when the first floor joists were in place and wall one-half story high; second payment of $1,315 when the plastering was completed on the inside; third installment of $1,315 thirty-five days after completion of the building. The contract further provided that the building should be constructed under the supervision of an architect, and payments made upon certificates from him.

In connection with this contract, a bond was executed by the contractor, Spreen, as principal, with the defendant Maryland Casualty Company as surety, in the sum of $2,630 (being one-half of the contract price), conditioned for the faithful performance of the contract on the part of the contractor, and for payment in full of claims for labor and materials furnished in the construction of the building, and further stipulating that if the act of the legislature of 1911, amending the lien laws, should be held invalid, then the bond should remain in full force and effect for the protection of the obligee.

This bond was attached to the contract and by its terms refers to and makes said contract a part thereof. Said contract and bond were duly filed on the 30th of September, 1912. Work was commenced under this contract about the middle of October, 1912.

On the tenth day of December, 1912, while said building was in course of construction, the defendants Odell and Jurian entered into a further contract with the contractor. Spreen, for the construction of a second story to be "added to the building [then] in course of construction." The contract price for this second story was three thousand six hundred dollars, payable in four equal installments of nine hundred dollars each as the work progressed. In connection with this contract a bond was executed by the contractor, Spreen,

with the defendant Maryland Casualty Company as surety for the sum of one thousand eight hundred dollars (being one-half the contract price) and containing provisions substantially the same as the first bond. This supplemental contract and bond were filed in the office of the county recorder of Santa Clara County on the 26th of December, 1912.

It appeared from the evidence that the defendants, Odell and Jurian, paid, on November 25, 1912, the contractor the first installment of $1,315 called for by the original contract, and on February 26, 1913, the second installment of $1,315 called for by said contract. They paid the first installment of nine hundred dollars called for by the contract for the erection of the second story on or about the 30th of December, 1912.

All of these payments were made upon certificates of the architect to the effect that they were due and payable, and no contention is made on the part of the lien claimants as to the propriety of any of these payments, except as to the second payment of $1,315 upon the original contract on February 26, 1913, which payment the lien claimants contend, and the trial court found, "was prematurely made."

The court further found that on the first day of March, 1913, the contractor, Spreen, abandoned work upon the building and ceased labor thereon for more than thirty days thereafter. On April 21, 1913, the defendants Odell and Jurian began the work of completing the building and did complete it about the 16th of June, 1913, at an expenditure of $4,744.59, which the court found to be the reasonable cost of such completion. The court also found that there was extra work upon the building amounting to $362.60, thus making the amount of the contract price actually remaining in the hands of the owners, Odell and Jurian, including the amount due for extras, $948.01.

The court charged the account of said defendants with the $1,315 paid as the second installment upon the first contract, upon the theory that such payment had been prematurely made, and determined that the lien claimants were entitled to personal judgment against said Odell and Jurian in the sum of $2,263, with interest, "to be ratably distributed among them according to their respective claims.'

The evidence showed, and the court found, that the several claims of lien involved in the consolidated actions were filed

upon the dates following, viz.: The claim of O'Brien Lumber Co., June 25, 1913; the claim of Hubbard & Carmichael, July 2, 1913 (embraced in the Hubbard action); the claims of G. J. Guth, Fred L. Peterson, Dudfield Lumber Co., and McDonald and Burke (embraced in the suit of G. J. Guth), April 1, 1913; the several claims involved in the suit of Walter G. Mathewson (Ayrer, Peterson, Graybill, Conti, Judson, McDaniel, and Taylor) were filed partly on the 28th and partly on the 29th of March, 1913; the claim of E. C. Power, July 19, 1913, and the claim of Charles C. Minton, July 23, 1913.

From the findings made the trial court deduced the conclusion of law that the several parties plaintiff were entitled to judgment foreclosing their respective claims of lien in the following amounts, viz.: T. B. Hubbard, $1,972.28; E. C. Power, $125; G. J. Guth, $627.55; W. G. Mathewson, $678.60; C. C. Minton, $337.90. It was further adjudged that the several parties plaintiff were entitled to interest upon their respective claims of lien from the tenth day of April, 1913.

Judgment was also entered against the defendant Maryland Casualty Company for the full amount of each and all of the claims with interest, which aggregated the sum of $2,522.27, and the judgment provided that the liens should be first satisfied to the extent of that sum by sale of the premises, and that execution should thereupon issue against the surety for the deficiency, if any, remaining.

The appeal is from the judgment and from the order denying motion for a new trial by the defendants Odell and Jurian, as owners, and the Maryland Casualty Company, as surety.

The contention made upon behalf of the owners, Odell and Jurian, that the judgment is against law in so far as it charges the owners, defendants Odell and Jurian, with the sum of $1,315 found to have been "prematurely" paid to the contractor in advance of the time stipulated therefor in the contract and after notice to withhold payment had been served upon the defendants, is based upon the fact that section 1184 of the Code of Civil Procedure docs not now, as it did prior to its amendment in 1911 (Stats. 1911, p. 1315), expressly make it "the duty of the person who contracted with the contractor to . . . withhold from his contractor . . sufficient money due, or that may become due to such contrac