120 Cal. 364 | Cal. | 1898
Action upon a street assessment. A demurrer to the complaint was sustained, and the plaintiff has appealed from the judgment thereon. The sufficiency of the demurrer is presented by the respondents upon two propositions:
1. In the resolution of intention the city council described the, work to be done in the improvement of the street as follows, viz:
2. The contract for doing the work was entered into with the superintendent of streets August 2, 1889, and it is alleged that
Whether the contract was thus completed depends upon whether it had expired or was in force at the date of the first extension (Beveridge v. Livingstone, 54 Cal. 54), and this depends upon the construction of the word “thereafter” in the above averment. Section 6 of the aforesaid act provides that the superintendent of streets “shall fix the time for the commencement, which shall not be more than fifteen days from the date of the contract, and for the completion of the work under all contracts entered into by him.” Unless this provision is complied with, the contract is invalid (Libbey v. Elsworth, 97 Cal. 316), and unless there is a definite point of time named in the contract at which the work is to be completed, or from which the time within which it is to be completed is to be computed, the time for its completion is not “fixed.” “Thereafter,” as used in the second member of the above averment in the complaint, refers ■grammatically to the same point of time as “thereof” in the first member, viz., the date of the contract, and is moreover the legal construction to be given to the act alleged to have been performed by the superintendent. The superintendent did not fix any day for the commencement of the work—the allegation that he fixed the “time” therefor to be “within fifteen days” ■from the date of the contract left to the contractor to determine the particular day within that time on which he would begin bis work (Rauer v. Lowe, 107 Cal. 229)—and, as he could not know in advance upon what day the contractor would begin the work, it cannot be assumed that the superintendent intended the time for its completion to run from that day, as that would be to permit the contractor rather than himself to fix the time for its completion. As the superintendent must be deemed to have acted legally, and as his act, if possible, is to be construed so as to make it effective rather than nugatory, it must be held that
The demurrer was, therefore, properly sustained and the judgment is affirmed.
Van Fleet, J., Garoutte, J., McFarland, J., Temple, J., and Henshaw, J., concurred.