Conlin v. Seamen

22 Cal. 546 | Cal. | 1863

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action brought by the assignee of a street contractor against a property holder to enforce a lien and payment for work done in grading Lombard Street, between Stockton and Mason streets, in the City of San Francisco. The defendent demurred to the complaint on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The Court below overruled the demurrer, and no answer being filed, rendered a judgment for the plaintiff, from which the defendant appeals.

The first objection to the complaint is, that the work was not done within the one hundred and thirty-five days specified in the contract; that the Superintendent had no authority to extend the time, as alleged in the complaint, and therefore the defendant is discharged from all liability. Sec. 43 of the act known as the Consolidation Law, as amended by the Act of 1861, confers the power of entering into contracts awarded by the Board of Supervisors for the grading of streets, upon the Superintendent of Streets, who is for that purpose the official agent of the city and the lot-holders. Sec. 44 provides that the work “ must in all cases be done under the direction and to the satisfaction of the Superintendent,” and he is required to make the assessment and apportionment of the expenses. Sec. 45 provides that “ if any party directly interested in any such work, contract, or assessment,, shall feel aggrieved by the acts or determination of the said Superintendent in relation thereto, he may appeal to the Board of Supervisors, whose decision thereon, upon hearing, shall be final.” We think it clear that the law vests full power in the Superintendent to make the contract, and also if he sees fit, to fix therein the time for the completion of the work, and to enlarge the time if he thinks proper. If in the performance of any of these acts any person directly interested feels aggrieved thereby, he has a remedy by appeal to the Board of Supervisors, and failing to so appeal he is to be deemed to have acquiesced therein. This objection, therefore, is not well taken.

The next objection is that as the complaint shows that the property was assessed to Lucas, Turner & Co., and not to the defendant, therefore he is not hable. The complaint also avers that the defendant was, at the time of the commencement of the proceedings, and ever since has been, the owner and in the possession of the premises, and the demurrer admits these facts. It is the owner that is made liable for the expense of grading; and the fact that the assessor erred, or was mistaken in the name of the true owner of the premises, does not release the real owner, or transfer the liabilily to a person who has rio interest in the property, or estop the plaintiff from enforcing his claim against the real party in interest who has received the benefit of the work performed„by the plaintiff’s assignor.

It is also urged that the complaint is defective in not averring a special demand upon the defendant. The forty-ninth section of the act provides that “ the contractor or his agent shall call upon the person so assessed, or them agents, if they can conveniently be found, and if payment be not made, shall demand payment upon the premises.” The complaint fully avers a performance of these requirements. The act does not make a special demand upon the defendant necessary before a suit can be brought. The Court below properly overruled the demurrer.

The judgment is affirmed.