118 P. 527 | Cal. | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *191 This action was brought by plaintiff against defendant, the treasurer of the city of Los Angeles, to restrain the sale of plaintiff's property in the foreclosure of a lien for certain street-assessment work.
The city of Los Angeles had entered into a contract with one Whittier for the performance of certain street work on Pasadena Avenue. The specifications for the work contained the following clause: "all loss or damage arising from the nature of the work to be done under this agreement . . . shall be sustained by the contractor." The firm of Tryon-Brain Company succeeded to Whittier's rights and obligations under the contract and was proceeding with the work. When it was more than half completed the contractors became aware of the decision of this court inBlochman v. Spreckels,
It is contended that the finding to the effect that the case ofBlochman v. Spreckels,
The same is true of another finding of the court which is here attacked, the finding to the effect that the work had been completed in accordance with the specifications and ordinance. Indeed, it can hardly be said that there is an issue upon this proposition since plaintiff's complaint alleges that it was under the contract and specifications in her complaint set forth and under no other contract or specifications that the contractors performed and completed the street improvement work. There is no denial of this in either the answer or in the complaint in intervention, but both contain averments to the same effect. Moreover, the issuance of the bond afforded prima facie evidence of the regularity of the proceedings, the acceptance of the work, and, consequently, that it was done according to the specifications (Stats. 1899, p. 40). And, finally, the whole course of conduct of plaintiff's attorney under defendant's offer to prove in detail the performance of the work in accordance with the plans and specifications amounted to a *194 specific waiver of any more formal proof than was actually made at the trial. Thus says plaintiff's attorney, when offer of proof on this matter was made: "I have got my idea of it. They assert and we deny. I don't know of any better way of their proving it than to prove the city accepted it. I think that is all the proof that is absolutely necessary." This invited proof was made.
The third objection of the plaintiff is that, treating the waiver as valid, there was a non-compliance with its terms which relieves her from the enforcement of it. This non-compliance it is urged comes from the fact that the "independent survey" which demonstrated that the work was constructed upon the grade established by the ordinance was not made by the parties jointly. But to this it must be answered that plaintiff's waiver does not in terms declare that a joint independent survey be made at the instance of both parties, and whatever may have been her original right to participate in the making of such a survey, she waived it by her acquiescence in the issuance of and the payment of the installments upon the bond, and when proof of the independent survey made by the intervener was offered to establish the true grade, by her failure even then to establish its error.
Appellant argues that under the authority of Blochman v.Spreckels the assessment was void as against public policy, and that such being the case a waiver of the right to assert this is itself invalid. But in this appellant errs. It was not upon the ground of public policy that the specifications such as those considered in Blochman v. Spreckels were held to invalidate the contract. It was because they were in violation of and not authorized by the statute, and because the effect of permitting them might be illegally to increase the burden upon the property-owner; but as the statute in this regard is designed for the protection and benefit of the property-owner he may waive its benefits. (Civ. Code, sec.
The last contention of appellant is that she was not estopped because "there being no personal liability the doctrine of estoppel in pais has no application." Waiving the fact that the estoppel in this case is founded on contract and does not rest inpais, it must be conceded that appellant's position finds support in the language of Heft v. Payne,
It follows, therefore, that the court was correct in its conclusion that plaintiff had estopped herself by her written waiver of her contract, and the judgment appealed from is therefore affirmed.
Shaw, J., Angellotti, J., Sloss, J., Lorigan, J., and Melvin, J., concurred.