
    [No. 12031.
    Department Two.
    January 16, 1915.]
    Mondioli & Stewart, Respondents, v. American Building Company, Appellant.
      
    
    Appeal — Record—Evidence — Abstract — Necessity. Where no question is made upon the evidence, appellant need not bring it up on appeal or abstract it, or make any reference to it in the abstract.
    Appeal- — -Briefs—Reference to Abstract. An appeal will not be dismissed for failure of the brief to refer to the abstract, where the only point made is on the findings, which are in the abstract and quoted in full in the brief.
    Mechanics’ Liens — Foreclosure — Conditions Precedent — Amount Due. In an action to foreclose a mechanics’ lien, the plaintiff is not entitled to judgment until the debt is due.
    Indemnity — Contracts—Amount Due — Conditions Precedent— Bonds — Construction. Under an indemnity bond given by building contractors to the owners, conditioned to defend and save the owners harmless from the claims of the D. company and further providing that the final twenty per cent payment under the contract should be retained as additional indemnity until the obligors obtained a receipt in full from the D. company or until its claims should be outlawed, such final twenty per cent is not due until the happening of one of the conditions precedent stipulated in the bond; until which, judgment cannot be entered on the contract in favor of the contractors, if the sum unpaid is less than the twenty per cent to be retained as indemnity.
    Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered January 17, 1914, upon findings in favor of the plaintiffs, in an action to foreclose a mechanics’ lien.
    Reversed.
    
      
      Wakefield & Witherspoon (Harry T. Davenport, of counsel), for appellant.
    
      Edwin H. Flick and Hamblen & Gilbert, for respondents.
    
      
       Reported in 145 Pac. 577.
    
   Mount, J.

This action was brought to foreclose a lien against certain property belonging to the American Building Company. The cause was tried upon issues made by the pleadings, and resulted in a judgment in favor of the plaintiffs and against the American Building Company for $1,928.86. The American Building Company has appealed from that judgment.

■ The respondents move to dismiss the appeal for the reasons, first, that the testimony has not been brought up and has not been abstracted; second, because the abstract makes no reference to the evidence; and third, because the brief of the appellant makes no reference to the pages of the abstract. In answer to the first two grounds of this motion it is sufficient to say that the appellant makes no question upon the evidence. It relies wholly upon the findings made by the trial court. It was therefore unnecessary to bring the evidence here. The appellant has not referred to the pages of the abstract in its brief. But the findings relied upon are in the abstract and are quoted in full in the brief; and we think the cause ought not to be dismissed because the pages of the abstract are not referred to in the brief. The motion is therefore denied.

It appears from the findings of the trial court that, on the 5th day of May, 1910, the respondents and the appellant entered into a contract whereby the respondents agreed to do certain plastering upon a building being constructed by the appellant in the city of Spokane, according to plans and specifications prepared for the work. The contract provided, at article 3, as follows:

“No alterations shall be made in the work except upon written order of the architect, the amount to be paid by the owner, or allowed by the contractors by virtue of such alterations to be stated in said order. . . .”

The contract also provides, at article 9:

“It is hereby mutually agreed between the parties hereto that the sum to be paid by the owners to the contractors for said work and materials shall be $14,710, subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the owners to the contractors in current funds, and only upon certificates of the architect as follows: Payments to be made to the amount of eighty per cent of the work done on the building every two weeks.”

It seems that, before this contract was entered into, the American Building Company had some negotiations with a company known as the Architectural Decorative Company for doing the work, and there was some fear that that company might claim the contract under these negotiations. Before letting the contract in question to the respondents, the appellant required of the respondents a bond in the sum of $2,950 to the effect that they would save the appellant from any liability to the Architectural Decorative Company in case that company should make a claim against the appellant. This bond was furnished by the respondents, and recited that:

“Whereas, the principals herein, to wit, the copartners of Mondioli & Stewart, are desirous of obtaining the contract for the work mentioned on the building of the American Building Company and have agreed to indemnify and save harmless the American Building Company in the manner above mentioned;
“Niow, therefore, the condition of this obligation is such that if the above bounden William Stewart and A. Mondioli, copartners doing business as Mondioli & Stewart, . . shall defend and keep harmless and indemnify said American Building Company, its successors or assigns, from all claims, demands, liabilities or claims for damage or damages- that the said Architectural Decorative Company might have or claim against the said American Building Company, . . . then the above written bond to be void, otherwise the same to remain in full force and effect.
“It is further agreed that the American Building Company may and shall retain the final twenty per cent payment under its contract to be entered into' with the principals herein, as additional indemnity against any costs, expenses or damages or claims of the Architectural Decorative Co. against the American Building Co., said twenty per cent to be retained until the principals herein shall have obtained a receipt in full of all claims and demands of the Architectural Decorative Co., or until any claims that said Architectural Decorative Co. might have shall have been outlawed by the statute of limitations.”

This bond was given as a part of the contract. The court so found.

Upon the trial of the case, the court found that this contract had been entered into between the parties; that the work upon the building had been done by the respondents; that the respondents had been paid by the appellant the full sum of the original contract price with the exception of $51, but that extras had been ordered and put into the building which amounted to $1,863.46.

The court also found as follows:

“The court further finds that at the time of the entering into the contract between plaintiffs and defendant, plaintiffs entered into a bond of indemnity whereby they agreed that they would procure from the Architectural Decorative Company a receipt and release from any and all claims which said company might have against the American Building Co., and in addition thereto as an additional indemnity, the defendant herein should retain twenty per cent of the payment under the contract entered into with the plaintiffs as a guaranty against any cost, expense, damage or claims of the Architectural Decorative Co. against the American Building Co., and until such receipt and release was obtained by the plaintiffs from the Architectural Decorative Co., or until the claim of the Architectural Decorative Co., if any it had, was outlawed by the statute of limitations.”

And as conclusions of law, the court found:

“That the plaintiffs herein are entitled to judgment against the defendant for the several amounts found due, as set out in the foregoing findings, making a total amount of $1,928.86, but that such judgment rendered herein shall be stayed until the plaintiffs have furnished to the defendant a release for any claims the Architectural Decorative Company might have as referred to in said bond, and as an indemnity and guaranty of the plaintiffs against any costs, expenses, damages or claims of the Architectural Decorative Company against the defendant, American Building Co., or until such release and receipt is obtained by the plaintiffs from said Architectural Decorative Co., or until the claim of said Architectural Decorative Company, if any, is outlawed by the statute of limitations; and no interest shall be allowed on said judgment until the terms of said bond of indemnity have been fully complied with.”

Thereupon a judgment in accordance with these conclusions of law was entered by the trial court. In short, the trial court found that the appellant was indebted to the respondents in the sum of $1,928.86, but that this sum was not due at the time the action was brought, nor at the time the judgment was entered.

It seems too plain to admit of serious discussion that, where a debt is not due, there is no right to a judgment. In the case of Llewellyn Iron Works v. Littlefield, 74 Wash. 86, 132 Pac. 867, where an action was brought to foreclose a lien for money not due, we held that the lien could be foreclosed only for the payments which were past due. In that case we said:

“The right to a lien claimed for materials and labor not being waived, the question then arises as to the amount for which the lien may be foreclosed in the present action. Prom the facts above stated, it appears that, when the suit was instituted, four payments, totaling the sum of $1,000, were past due. The action, however, sought to recover $1,765, the total amount of the debt. It is argued that failure to meet the payments as they became due caused the entire debt to mature and become at once payable, notwithstanding the specifications as to the times of payment, but this contention cannot be sustained. There is no clause in the note providing that, in the event the payments are not made at the time specified, that the whole sum shall, or may at the election of the creditor, become due and payable, in the absence of which, delinquency as to certain payments does not mature the entire debt. In Foxell v. Fletcher, 87 N. Y. 476, it is said:
“ ‘At the time this action was commenced, two of the monthly installments had become payable, but it does not follow that the whole debt had become due. The debt was, by the agreement and in consideration of the security given, changed from one payable immediately to one payable in monthly installments, and in the absence of a stipulation that, on default in the payment of any of these, the whole should become due, the plaintiffs were entitled only to recover the installments due at the time of the commencement of the action. They cannot now recover more, without taking the necessary steps to enable them to bring in installments accruing since the commencement of the action.’ ”

We know of no case, and certainly none is cited, to the effect that a judgment may be had for a debt not due. In this case, it is plain from the findings of the trial court that, while the defendants are indebted to the plaintiffs in the sum of $1,928.86, yet, under the terms of their contract, this amount was not to become due until the happening of an event which, so far as the record shows, has not yet transpired.

It is apparently claimed by the respondents that the appellant was entitled to retain twenty per cent of the original contract price, which it did not retain, but was not entitled to retain any part of the amount of the extras furnished; and that the amount for extras is now due. But we think the contract is not susceptible of this interpretation. As stated above, the contract provides for alterations to be made upon the order of the architect. This clearly refers to extra work to be done. In article 9 of the contract, as quoted above, it is stated that the sum to be paid by the owners for the work and material shall be $14,710, “subject. to additions cmd deductions as therein before provided.” This of course refers to extras which may be added to, or which may be deducted from, the contract price. The twenty per cent provided for refers to the whole work under the contract. It is conceded that, at the time this action was brought, the defendants were holding less than twenty per cent of the contract price with extras. The court properly found, therefore, under the contract, and under the conceded facts in the case, that this $1,928.86 was not due; and not being due, it follows, as a matter of course, that judgment should not have been entered therefor. This being true, there was nothing for which the court could enter a judgment. The case is like one where a building has not been completed and a party seeks to obtain a judgment for the contract price when the work has not been done. Where the parties have, by their agreement, made some act or condition precedent to payment, that act or condition must be fulfilled before the payment is due. Boots v. Steinberg, 100 Mich. 134, 58 N. W. 657; Harmon v. Ashmead, 60 Cal. 439.

We are satisfied that the trial court, upon the findings made, should have dismissed the action. The judgment is therefore reversed.

Crow, Main, Ellis, and Fullerton, JJ., concur.  