' The defendant had entered into a contract with one Sherwood, a contractor, for the erection of a dwelling house, in which he undertook to pay for -the work and material in five payments as the work progressed. After the second payment had been made, and before another installment became due, Sherwood gave to .plaintiffs (material men) an order on account of his contract for the payment of $1,376.26, as follows: “Six hundred ($600.00) Dollars when plastering is completed. Seven hundred seventy-six 26/100 ($776.26) Dollars when the trim is on, ” which was accepted by defendant. It appears that within a few days after the order was accepted, and before another payment became due under the contract, Sherwood abandoned the work and it became necessary for defendant to finish, the job himself. It also appears from evidence given upon the part of the defendant that the plastering was not completed and the trim was not on. The learned county judge treated the order and acceptance as an independent contract for the payment of money. In this I think he was in error. It seems clear that it was the intention of the parties that the order should be conditional .upon the contractor’s earning the amounts specified under his contract, and the question of fact ■ as to whether anything was due ought to have been submitted to the jury.
It follows, therefore, that the judgment and order must be reversed and a new trial ordered, costs to abide, the event.
Jenks, P. J., Thomas and Carr, . JJ., concurred; Woodward, J., read for affirmance.