79 Cal. 45 | Cal. | 1889
This is an action brought by a contractor to enforce a lien for street work done in the city
The contract was entered into between the plaintiff and the city marshal in December, 1879. A time for the completion of the work was mentioned in the contract. This time was extended (or attempted to be extended) twice during the year 1880 by the city council and marshal. The work was completed within the time as extended, but not within the time originally mentioned in the contract. Appellants’ main contentions are: 1. That after January 1, 1880, when the new constitution went into full effect, there was no power in the city, or any of its officers, to extend the time for the completion of street work; 2. That under the city charter itself neither the city council nor marshal, nor both, had power to grant such extension; and 3. That no such extension was ever actually given.
1. As the contract was made before January, 1880, it was not impaired or affected by the new constitution. The granting of the extension of time was not a novation or new contract; it was merely a pursuance of the original contract under rights existing by virtue of the law under which it was made. The extensions were made before the original time, or the time given in the first extension, had elapsed. The case of German Savings Bank v. County of Franklin, 128 U. S. 526, cited by appellants, differs in many respects .from the case at bar.
2. The contention that the charter gives no power to extend the time for the completion of a contract rests (in addition to the claim that Conlin v. Seamen, 22 Cal. 547, and Houston v. McKenna, 22 Cal. 551, were wrongly decided) on the attempted application of the maxim, Expressio unius, etc., to the latter clause of the first sen- " tence of section 6 of the Oakland street law. (Stats. of 1863-64, p. 333.) Said clause is as follows: “Said mar
The last two lines of the sentence seem to contemplate a condition of things existing after the work had been commenced, and a time when it would be folly to speak of extending the “commencement” of that work. At all events, the true construction of the clause is so doubtful that if the power to extend the completion of the work can be fairly gathered from other parts of the statute, then it would be straining a rule beyond its breaking point to hold such power to be excluded by said clause by virtue of the said maxim invoked by appellants. And we think that the power to extend the time for the completion is clearly given in other parts of the statute. It is to be observed that the statute does not provide that there shall be inserted in the contract any stated time
3. The third contention of appellants is that the resolutions adopted by the council, and the indorsements made on the contract by the marshal, do not contain sufficiently apt language to create extensions of the time to complete the work. We think, however, that this view is over-critical, and that the language used clearly expresses the intention to grant the extensions, and is amply sufficient to work that result.
Judgment and order affirmed.
Thornton, J., and Sharpstein, J., concurred.