In a petition for rehearing the defendant contends that of the $750.50 which the city of Fresno, on May 2, 1913, ordered paid to Simpson on his building contract, only $363 was due, and that the remainder, $387.50, did not become due until thirty-five days after May 1, 1913, the date *Page 210 of the completion of the building. From this he argues that under the mechanic's lien law the claimants under the building contract were entitled to preference over the judgment creditor as to the $387.50 not due on May 10, 1913, when they served their notices to withhold payment for their benefit.
The record does not establish the facts as claimed. The complaint alleges that the city allowed the Simpson claim for $750.50 on May 2, 1913, and ordered that a warrant be drawn for its immediate payment. The answer does not aver that this allowance anticipated the final payment on the building contract and included the installment of $387.50 that was not due until June 4, 1913. It cannot be presumed that the city would pay a debt before its maturity, and the only inference remaining is that the $750.50 was made up of the installments which fell due at and before completion. The answer alleges that the $750.50 is the full amount due under the building contract, but as the action was begun on May 16, 1913, which was before the final payment became due, this would be true only if the allowance covered the installments which were then due. The demurrer to the answer included a specification that the answer was uncertain in this respect, and defendant was therefore duly advised that if the facts were as now claimed, the pleading was defective.
Sloss, J., and Lawlor, J., concurred.