97 Cal. 305 | Cal. | 1893
This action is upon a street assessment, and it appears from the complaint that the contract which is the foundation of the assessment was not entered into within fifteen days after the first posting of the notice of its award to plaintiff. Section 5 of the act of March 18, 1885 (Stats. 1885, p. 147), contains the following: “ But if said original bidder neglects, fails, or refuses for fifteen days after the first posting of notice of the award to enter into the contract, then the city conn
■ As already stated, the complaint alleges that the contract for the street-work was made more than fifteen days after the first posting of notice of its award to plaintiff, but there is no averment therein that the delay in entering into the contract was not caused by the fault of plaintiff, and in the absence of such an allegation the complaint does not state a cause of action, as it fails to show any authority in the superintendent of street's to make the contract after the expiration of the fifteen days named in the statute. The facts showing such authority cannot be left to inference, but they must be alleged. It is incumbent upon the plaintiff in this class of actions to show in his complaint, “by either special or general averments of the character permitted by our statute, that the various provisions of the statute under which it is sought to charge the defendant were complied with, for
It is possible, however, that the plaintiff may be able to obviate this objection to the complaint by its amendment; and it is therefore necessary to pass upon other questions which have been argued, which we now proceed to do. There was no error in sustaining the demurrer to the answer of defendant. The fact that there was a provision in the contract to the effect that there should be no assessment upon the adjoining property for improving that part of the street occupied by the railway company, and that plaintiff would accept as payment for all work done thereunder “ the warrant of said superintendent as the same may be issued by him, . „ . . and also the amount which may be paid by any
Nor is it any defense to this action that the property against which it is sought to enforce the lien constitutes the homestead of defendant. The cost of making improvements like those embraced in this contract is as much a charge against the homestead as against any other property fronting upon such improvements.
The third separate defense set out in the answer is equally without merit. The verbal agreement, of plaintiff to enter into a written contract with defendant by which plaintiff was to accept from defendant a conveyance of certain land in payment of the amount which should be assessed against the property of defendant for the street improvements, and to pay to defendant the balance of the purchase price of said land, and the refusal of plaintiff to complete such written contract after doing the street-work, constitute no defense to this action. Nor is the case of defendant strengthened by the averment that if it had not been for such verbal agreement, he would have commenced an action to enjoin plaintiff from prosecuting the street-work under his contract made -with the superintendent of streets. As we construe the answer, the alleged agreement upon the part of plaintiff to purchase defendant’s land, and in part payment therefor to credit defendant with the amount of the street assessment, was never completed, and it is unnecessary to consider what would have been its effect if it had been reduced to writing, as verbally agreed upon, and defendant had tendered a deed in accordance with its terms.
In making the assessment, the superintendent of streets included $444, the cost of 37 bulkheads which
When, however, an assessment includes the cost of work not falling within the general description of that which is referred to in the resolution'of intention, or when such work bears no relation whatever to that which is described in the contract, this rule would not apply. But this is not such a case. The construction of the bulkheads was not, so far as appears here, an entire departure from the general plan or scope of the improvement described in the resolution of intention, although mention of them is omitted in the plans and specifications attached to the contract. In such a case the determination of the superintendent of streets that their construction was necessary in order to fully complete the work called for by the contract was only an error of judgment, and his action in making an assessment to cover their cost was only a mere error, which it is too late now to correct, and which does not render the assessment wholly void.
We do not regard the cases of Dyer v. Chase, 52 Cal. 440, and Donnelly v. Howard, 60 Cal. 291, cited by defendant, as being opposed to our conclusion upon this
We are satisfied that section 11 of the act of March 18, 1885, above referred to, does not require the property owner to appeal to the city council for relief from an assessment based upon a void contract (McBean v. Redick, 96 Cal. 191; Frick v. Morford, 87 Cal. 579; Brock v. Luning, 89 Cal. 316), or for relief from an assessment which includes the cost of work which the city council itself would not have had jurisdiction to contract for, because not embraced in the resolution of intention; but when the contract is valid, and the error complained of is only found in the assessment because it was made'to cover the cost of work not falling strictly within the provisions of the contract, although reasonably related thereto, and which might have been included in the contract without rendering it void, as being beyond the authority conferred by the resolution of intention, the failure to appeal to that body for redress is a waiver of the right to make such objection in the action brought to enforce the assessment.
Judgment and order reversed.
Fitzgerald, J., and McFarland, J., concurred.