Gaffney v. Gough

36 Cal. 104 | Cal. | 1868

By the Court, Sawyer, C. J. :

This is a suit for a street assessment in San Francisco. Gaffney was the contractor. He assigned one undivided half interest in the contract to the defendant, Donohue. After the assessment was made, and the warrant issued, Gaffney, the contractor, who still owned one undivided half of the amount due, made a personal demand upon defendants, in all respects as required by statute, if he was competent to make the demand. It is claimed, however, that he could not make a legal demand so as to charge defendants, because he only owned one half, and does not appear to have been the agent to collect the other half, or authorized to receipt for it. The statute says the contractor, or his agent, or assigns, shall call upon the persons so assessed, and demand payment of the amount assessed to each. One of the persons designated did make the demand, and this, we think, is sufficient to establish the liability and charge the land with the lien. The complaint is, therefore, sufficient in this respect.

The only other point made, is, that a personal judgment was rendered against the defendants. In this respect there is error under the rule adopted in the cases of Taylor v. Palmer, 31 Cal. 241, and Coniff v. Hastings, decided at the present term. And upon the authority of those eases the judgment must be modified by omitting the personal judgment against defendant, and limiting the relief granted to a sale of the lot upon which the assessment is made.

Ordered accordingly, and remittitur directed to issue forthwith.

Mr. Justice Sanderson expressed no opinion.