standard, we are of opinion plaintiff is not entitled to interest prior to verdict or judgment.

The cause is remanded with directions to the court below to modify its judgment in favor of the plaintiff by striking out the interest, and leaving the judgment to stand in favor of plaintiff for $98,228.49, with interest thereon at seven per cent per annum from October 21, 1886, the date of the entry of such judgment, together with costs of suit. The judgment and order are in all other respects affirmed.

THORNTON, J., concurred in the judgment.

MCKINSTRY, J., did not participate in the decision.

TEMPLE, J., dissenting.-Charles McLaughlin entered into a contract with the Western Pacific Railroad Company to construct and equip the railroad from San José to Sacramento for five million four hundred thousand dollars, payable partly in stock. Having this contract on the seventh day of January, 1865, McLaughlin contracted with Cox, Myers & Co., to build, construct, complete, and furnish materials for the construction of the road-bed of the railroad from San José to Stockton, a distance of seventy-four and one quarter miles, for nine hundred thousand dollars.

Before the contract was entered into, a preliminary survey had been made and a profile of the road showing the cuts and fills. Specifications were made as to other work. Prices were attached, showing the estimated cost of the different species of work, the excavations and fills at certain rates. per cubic yard, the bridging per lineal foot, etc. There was a stipulation in the contract however, that the location. of the road might be varied by the company and yet no change should be made in the contract price for the work, whether the actual amount was increased or diminished. It was further stipulated that, in case certain bonds were issued by named counties to aid the corporation to construct the road, "all work done and materials furnished, and all

other things required to be done and performed by and on the part of the parties of the second part, by the terms of this indenture of contract, shall be allowed and paid as the work progresses and materials are furnished, from time to time, at the prices and quantities made and fixed by an approximate estimate of the cost of said work made by

. . chief engineers of said company, dated January 4, 1865, and hereto attached. . . . Said estimates shall be made upon the report of the chief engineer of said company from time to time as the work progresses and materials are furnished as aforesaid, and which said engineer shall examine and report to the parties hereto as the said work progresses and materials are furnished, as aforesaid, giving accurate estimates thereof from time to time, as often as once per month if so required by the parties of the first part."

Cox, Myers, and Arnold, in March, 1865, entered into an agreement in writing with the engineer, who was to superintend the work for the company, and make the estimates provided for in the contract, and whose salary was to be paid by McLaughlin, by which they agreed to give to the engineer ten per cent of their profits upon their said contract with McLaughlin, in consideration for which said. engineer agreed that as such engineer he would take pains in the location of the work and in laying it out so as to save as much work as possible to them, and make such changes as would make the work lighter. This agreement was kept secret, and was unknown to McLaughlin and his agents.

Estimates were made as provided in the contract by the engineer, based upon the alignment and profile, although both had been departed from.

The first four estimates so made were paid, less ten per cent reserved, within a few days after they were certified. The fifth, for $44,530.80, was made September 9, 1865, and a portion only was paid, leaving about $14,000 due. McLaughlin, who had been absent from the state when the

previous estimates were paid, then objected to the mode of making the estimates, claiming that they should have been made, not on the profile where the line of the road had been changed, but upon accurate estimates of the work actually done-made from time to time-by the engineer. The line of the road had been changed by the engineer so as to greatly diminish the amount of work to be done, yet in making the estimates he ascertained the proportion of the work done necessary to complete the road-bed for a specified distance, and then allowed for that proportion of the work which would have been required if the line had not been changed. It was claimed, for instance, that in the fourth estimate thirty-one road and farm crossings and $7,285 of masonry had been included, none of which were required in the new location; and in the fifth estimate a charge of $30,000 for tunneling when the line and grade of the road had been so changed as to avoid the proposed tunnel altogether.

This controversy was settled October 2, 1865, McLaughlin paying seven thousand dollars more, only on the fifth estimate. At that time a supplemental contract was entered into, in which it was provided that thereafter accurate estimates should be made monthly of the work actually done, as the basis for the progress payments, and it was stipulated "if the contract is at any time annulled by mutual consent, or the work under it entirely suspended by direction of McLaughlin, then in such case (but in no other event except upon the full completion of said contract) the said Cox and Arnold shall be allowed for all the work done up to that time, the amounts and quantities shown in said profile for the corresponding sections or portions of said actual quantities of work performed."

The contract between Cox and Arnold and the engineer, it is said, was terminated about the time McLaughlin was expected to return from the East, after three or four estimates had been made. After the fifth estimate a new chief engineer was appointed.

Three other estimates were made. But between November 20, 1865, and June 5, 1866, no estimate was made, although plaintiffs insisted and repeatedly requested to have them made. May 5, 1866, however, $9,000 was paid without an estimate. The eighth estimate was made on June 5, 1866, for $35,254.83. On this $2,500 was paid in addition to the $9,000, leaving $23,754.83 still unpaid.

On the fifteenth day of June, ten days after the estimate was made, Cox and Arnold notified McLaughlin's agent that in consequence of the failure to pay the estimate they were compelled to suspend work entirely from that date, and would settle with him according to the terms of the contract.

McLaughlin, through his agent, promptly replied, denying the right to abandon the contract, and requesting Cox and Arnold to proceed with the work.

McLaughlin was at that time in New York, endeavoring to place the bonds he had received, or in some other mode to procure money to make these payments.

This court has, on former appeals, unmistakably held that the installments or progress payments, provided for in the contract, are not conditions precedent, the failure to perform which would justify plaintiffs in abandoning the contract, and enable them to sue for profits they would have made had they performed it, or for compensation at conventional rates. It was held that this did not constitute prevention or excuse the plaintiff from performance. For this breach plaintiffs had simply their right of action for damages.

Counsel now say they do not claim to have established. technical prevention, such as this court has said the default to make the payments does not amount to; but they do claim that McLaughlin's failure incapacitated the plaintiffs to perform, and authorized them to consider it a consent to a rescission on the part of McLaughlin, which, if plaintiffs assented to, would justify them in demanding payment

at contract rates; that is, it is not technical prevention, but yet is prevention which will have the same effect. I do not understand this distinction. In fact, I think it is trifling

with the rulings of the court. This court attached no importance to the word. It simply held that the failure to pay did not authorize Cox and Arnold to abandon the work and sue on the contract.

There certainly was no rescission by mutual consent. McLaughlin is not shown to have been insolvent and unable to perform. He did not entirely refuse to perform his part of the contract. Plaintiff apparently knew he was absent trying to realize upon his securities, to enable him to make the payments. Under such circumstances, it seems absurd to claim that by this temporary failure McLaughlin indicated an intention of abandoning the contract or of refusing to go on with it. This court has held that this failure was one which did not authorize plaintiffs to cease work and sue on the contract, but that their remedy was an action for damages. Of course it did not terminate the contract or authorize plaintiffs to rescind.

Undoubtedly there are cases which hold that a total failure of performance, which indicates a disposition on the part of one party to abandon the contract, or a refusal to go on with it, may be considered as a consent to a rescission; but where it is known that the party in default is struggling to perform, it would be as unreasonable as unjust to conclude from a temporary failure a consent to a rescission.

But if the charge of fraud be considered, it is equally plain to my mind that it constituted such a breach of the contract on the part of the plaintiffs as would of itself render it impossible for them to recover upon the con

tract.

The parties contracted for payments to be made upon the certificates of the engineer. He was to ascertain the