112 Cal. 311 | Cal. | 1896
Certain persons, to whose rights plaintiff has succeeded by assignment, entered into a contract with the county of Fresno, whereby they agreed to build'additions to the county courthouse, and to complete the same within the space of fifteen months from the date of the contract, which was December 14, 1891; the county, on its part, agreed to pay them therefor the sum of ninety-nine thousand three hundred and eighty-seven dollars “ in gold coin or county warrants,” seventy-five per cent thereof in monthly installments, according to the stage of advancement of the work, and the remainder within thirty-five days after completion of the structure. The building was not finished until November 8, 1893, but this delay was within certain saving clauses of the contract, and was assented to by defendant, and on the day last mentioned the county accepted the work as fully completed in accordance with the contract. A balance of six thousand seven hundred and eight dollars and sixty-two cents remains unpaid on the said contract price, and to recover such balance is the object of this action. Plaintiff’s complaint averred the facts above stated, and also set forth, among other matters, the following: “That the said defendant, by the execution of said contract, did not incur any indebtedness or liability exceeding in any year of the performance of the same the income and revenue provided for it for such year; that the income and revenue of said defendant provided for the year 1892 was sufficient to meet all payments under such contract as fell due in 1892 under the terms thereof, and all other obligations of said defendant falling due in 1892, and that the income and revenue of said defendant provided for the year 1893 was sufficient to meet all payments under said contract as fell due in 1893 under the terms thereof, and all other obligations of said defendant falling due in 1893.” A demurrer to this complaint for want of facts sufficient to constitute a cause of action was sustained by the court, and, plaintiff declining to amend, judgment passed for defendant.
The judgment should be reversed and the court below directed to overrule the demurrer to the complaint.
Haynes, C., and Belcher, C., concurred.
McFarland, J., Temple, J., Henshaw, J.