33 P. 1109 | Cal. | 1893
On the eighth day of May, 1867, the plaintiff entered into a written contract with George Cofran, superintendent of streets of the city and county of San Francisco, to grade Market street, in that city, from Valencia street to Castro or Seventeenth street. Under the contract the work was to be commenced within thirty days and completed within three hundred and sixty-five days after its date, and the superintendent, ‘ ‘ acting in his official capacity, ’ ’ agreed that on its completion “he will duly make and issue an assessment, and attach a warrant thereto, as provided for in the aforesaid acts (the consolidation act and its amendments), for the expenses of the work, ” at a price named per cubic yard. The terms of the contract were further stated as follows: “And it is agreed and expressly understood by the parties to this agreement that in no case, except where it is otherwise provided in the acts aforementioned and referred to, will the said city and county of San Francisco be liable for any portion of the expense of the work aforesaid, nor for any de
In November, 1870, proposals for the work to be done under ■this act of the legislature were advertised for, and upon a bid of plaintiff therefor the contract was awarded to him; and on November 22, 1870, a contract was entered into between plaintiff and M. C. Smith, superintendent of streets. It is recited therein that Connolly has been awarded the contract for the work, under and pursuant to the act of the legislature of April 2,1870, above referred to; and Connolly agrees with Smith, “as such superintendent, acting under and in pursuance of said act of the legislature, and in conformity therewith, that he will do and perform” the work specified within nine months from the date of the contract, “as provided and conditioned in section 13 of said act.” Then follows a provision for Connolly’s payment as follows: “And it is agreed and expressly understood by the parties to this agreement that payments for the said work shall be made as provided in section 22 of the said act hereinbefore referred to, and that the said superintendent of the said city and county of San Francisco shall not be otherwise made liable therefor than is provided in and by said act.” Pursuant to this contract the plaintiff commenced, and on November 22, 1871, completed, the work to be done thereunder, and the same was accepted by the superintendent of streets. As required by the act, a petition was filed and proceedings had in the county court, and the said court determined that the lands described in the petition were necessary for the opening of the street, and appointed commissioners, as directed, to ascertain and assess the compensation to be paid to the owners thereof. Subsequently these commissioners made their report as to the ownership and compensation to be paid for said lands. In due course, also, the three commissioners to assess the benefits and to determine the amount to be awarded to the plaintiff under his first contract, and the amount due for his work
The defendant by its answer denied most of the averments of the complaint, and alleged that the causes of action- set forth therein were barred by the provisions of sections 337, 338 (subdivision 1), 339 (subdivision 1), and 343, Code of Civil Procedure, and also by the provisions of section 90 of the consolidation act.
The case was tried by the court without a jury, and, among other things, the court found that the action was barred by the provisions of each' of the sections of the code pleaded, and also by the provisions of the section of the consolidation act pleaded;.the findings upon these issues being numbered 12-16. Judgment was accordingly entered that the plaintiff take nothing by his action, from which judgment and an order denying a new trial he has appealed.
The only specifications of the particulars in which the evidence is alleged to be insufficient to justify the findings above referred to are as follows: “The defendant having failed to give to the plaintiff the warrant and assessment agreed upon in the first contract, and having failed to pay, or cause to be paid, the sum for the second contract, in this findings 12-15 are not supported by the evidence. There being no evidence, either on the part of the plaintiff or the defendant, that the claim sued upon in this action was one of the class mentioned in section 90 of the consolidation act, finding 16 is not sup
There is another ground, also, on which the decision of the court below might have been safely rested. By the terms of each of the contracts the plaintiff expressly agreed to the exemption of the defendant from any liability thereunder, and thereby, as against the defendant, waived all legal claims '"to the money now sought to be recovered. These agreements were made and still are binding on the plaintiff, and he cannot now escape their consequences: Conlin v. Board (decided July 21, 1893), 99 Cal. 17, 37 Am. St. Rep. 17, 21 L. R. A. 474, 33 Pac. 753.
In view of what has been said, it is not necessary to consider the other points discussed by counsel. The judgment and order must be affirmed, and it is so ordered.