of a surety is not to be extended beyond the terms of his contract. To the extent and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. He has a right to stand on its very terms. Speaking of the contract, the court said: "In this case the sureties agreed and guaranteed that Jones would place all the materials on the building site, on condition that he was to receive no money until he had done so; they did not agree that if paid in advance he would place such materials on the site. By the payment, the hope of reward for further performance was lost, the temptation to act dishonestly was increased." The sureties were held to have been exonerated.

Keissig v. Allspaugh, 91 Cal. 231, [13 L. R. A. 418, 27 Pac. 655], was also an action against the contractor and a surety on his bond. At the completion of the building there were certain liens upon it, notwithstanding which the owner paid the completion payment and the contractor failed to discharge the liens. The owner was compelled to pay these lien claims and he brought the action to recover from the principal and surety. In holding that the surety was discharged, the court said: "The judgment cannot be sustained upon the facts. The appellant, Lundeen, was a surety, and as money sufficient to satisfy all of the liens mentioned in the complaint was, or ought to have been, in the hands of the plaintiff at the time of his settlement with the contractors, he should have so applied it, instead of paying it to the contractors. This balance was to be retained in his hands as an additional security against liens upon the building, and in equity, he held the same also for the benefit of the sureties. It was a special fund to which they had a right to look for their indemnity, and in view of which it must be supposed that they assumed the obligation of sureties, as the original contract is referred to in the bond as the inducement or consideration for its execution, and the plaintiff was not authorized to surrender it without their knowledge or consent; and having done so, the appellant was discharged. (Bragg v. Shain, 49 In speaking of the

Cal. 131; Taylor v. Jeter, 23 Mo. 244.)" failure of the plaintiff to retain this balance or apply it to the satisfaction of the obligation for which the appellant was surety, the court said: "The neglect to resort to a fund already in his hands for his own protection in the very matter

85 Cal. App.-7

for which the defendant was a surety, and which fund was therefore charged with a trust in favor of appellant, and its surrender without his consent constitutes a defense to this action." It is true that in this case was involved the final payment of twenty-five per cent of the contract price which, by the terms of the contract, was to be reserved. The contract in the present case also reserved a twenty-five per cent final payment, and it is silent as to the duty of plaintiff where so-called "stop notices" are filed under section 1184 of the Code of Civil Procedure. But the statute defines the duty of the owner where such notices are given and the owner is charged with knowledge of the statute. It was clearly his duty to protect the sureties by withholding payment of unpaid installments, failing in which he was guilty of an act "which would naturally prove injurious to the remedies of the surety or inconsistent with his rights." For the sureties' protection, the statute must be read into the contract and be deemed to operate as fully as the written provision in the contract respecting the final payment.

In the Diamond Match Company case, supra, the court said of section 1184: "It is the clear duty of the owner under service of such a notice to withhold from the moneys due, or from the moneys that may become due, a sum sufficient to protect him against the demand of the notice. If he does not do this, he becomes justly liable under later notices to withhold which may be served upon him." As to the nature and effect of such a notice, a full discussion will be found in the cases cited in the Diamond Match Company case. (See, also, Sweeney, v. Board of Trustees, 33 Cal. App. 331, [165 Pac. 42].)

Respondents point out what appears from the record, that had appellant complied with the law as laid down in the Diamond Match Company case and with the strict terms of his contract, he would have had at the completion of the contract to pay lienholders and materialmen who had given withhold notices the sum of $21,073.70. The total judgment given against him in said case was $19,025.81, leaving in his hands a balance of $2,047.89, out of which there remained. only to be paid $885.31, the cost of completing the building. He now seeks to recoup the loss occasioned by his failure to observe his duty toward respondents as sureties. We think

they were by his acts entirely exonerated from all liability under their bond.

The judgment and the order are affirmed.

Burnett, J., and Hart, 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 December 20, 1917.

[Civ. No. 2242. First Appellate District.-October 23, 1917.] ALMOND CITY LAND AND DEVELOPMENT COMPANY (a Corporation), Respondent, v. MARY HUGHES PATTERSON, Appellant.

VENDOR AND VENDEE RECOVERY OF INTERMEDIATE INSTALLMENT PAYMENT PLEADING TENDER OF DEED. In an action for the recovery of an intermediate payment due upon a contract for the sale of real property, it is not essential to the statement of the cause of action that the complaint contain an allegation of tender of deed prior to the commencement of the action, where the contract is set forth in full and it is shown therefrom that the sum sued for and interest was due on the contract prior to suit and that the same was unpaid.

ID. STRIKING OUT PARTS OF ANSWER-JUDGMENT ON PLEADINGS.— Where after the granting of a motion to strike out parts of an answer no sufficient averments remain amounting to a denial of the plaintiff's cause of action, or a defense thereto, the granting of a motion for judgment on the pleadings is not erroneous.

APPEAL from an order of the Superior Court of Alameda County striking out portions of an answer to a complaint and from a judgment on the pleadings. Stanley A. Smith, Judge Presiding.

The facts are stated in the opinion of the court.

H. D. Perry, for Appellant.

H. S. Derby, for Respondent.

THE COURT.-This is an appeal from an order granting the plaintiff's motion to strike out certain portions of the defendant's answer, and also from the judgment on the pleadings rendered and entered after said motion to strike out had been granted and upon plaintiff's motion for such judgment.

The action was for the recovery of an installment payment of six thousand dollars with interest, alleged to be due upon a certain contract for the sale of real estate by the plaintiff to the defendant. Two points are presented upon the appeal: First, that the complaint did not state facts sufficient to constitute a cause of action. We find no merit in this contention. The complaint sets forth in full the contract upon which the action was predicated, and shows that the sum of six thousand dollars and interest was due upon that contract prior to the commencement of this action and that the same was unpaid. The appellant contends that the complaint should also have alleged the tender of a deed on the part of the plaintiff to the defendant covering the premises in question, as a prerequisite to the institution of this action; but in view of the fact that this action was brought for the recovery of an intermediate payment due upon said contract, upon which a further and final payment was still to become due before the defendant was entitled to a conveyance of the premises, and that the contract had not been rescinded, but, on the contrary, the plaintiff chose to stand upon its terms, and to bring this action for the recovery of an intermediate payment due and overdue thereon, no averment of tender of a conveyance of the premises to the defendant prior to the commencement of the action, to which she was not as yet entitled, was required.

The second contention of the appellant is that the answer presented sufficient defenses to the action to defeat a motion. for judgment on the pleadings; but our examination of the record discloses that after the trial court had granted the plaintiff's motion to strike out portions of said answerwhich order we think was not erroneous-no sufficient averments remained amounting to a denial of the plaintiff's cause of action or a defense thereto. This being so, the order of the court granting the motion for judgment on the pleadings was not erroneous.

The order and judgment are affirmed.

[Crim. No. 563. Second Appellate District.-October 23, 1917.]

THE PEOPLE, Respondent, v. JAMES BRENNAN, Appellant.

CRIMINAL LAW-ROBBERY-SUFFICIENCY OF EVIDENCE.-In this prosecution for the crime of robbery, it is held that the evidence is sufficient to show the commission of the crime and that the defendant was an active participant therein.

NEW TRIAL CONTINUANCE OF PROCEEDINGS-DISCRETION.-The matter of allowing a continuance of a motion for a new trial in order to obtain affidavits of newly discovered evidence rests in the discretion of the trial judge.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. H. T. Dewhirst, Judge.

The facts are stated in the opinion of the court.

A. S. Maloney, for Appellant.

U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.

JAMES, J.-The appeal in this case was taken from a judgment of imprisonment and an order denying defendant's motion for a new trial.

The appellant was accused by the information of the district attorney of the county of San Bernardino of the crime. of robbery, alleged to have been committed on the twentysixth day of May, 1917. Two points only are made upon this appeal as furnishing reasons why the judgment and order should be reversed. We find no merit in either contention.

1. It is claimed that the evidence was insufficient to establish the fact that the crime of robbery had been committed as alleged. Our attention is directed to the testimony given by the complaining witness. This witness testified that on the twenty-sixth day of May, 1917, he had been drinking at saloons in the town of Needles and was standing in front of one of these saloons when he was accosted by some person who said to him, "A couple of parties want to see you back