111 Cal. 308 | Cal. | 1896
The plaintiff and the defendant entered into an agreement June 7, 1893, by which the plaintiff was to construct an ironstone pipe sewer in front of the property of the defendant on Leavenworth street, between Greenwich and Lombard streets, in San Francisco, to the satisfaction of the superintendent of streets and highways of said city and county. There was at this time an ordinance in force in the city and
As the construction of the sewer in front of the defendant’s lot, without obtaining a permit therefor from the superintendent of streets, would have been in violation of the city ordinance, and have constituted a misdemeanor, any agreement between the plaintiff and defendant to construct it without obtaining such permit would have been unlawful, and could not form the basis of a civil action. Parties to an agreement are, however, deemed to have intended a lawful, rather than an unlawful, act, and their agreement is to be construed, if possible, as intending something for which they had the power to contract. As the obtaining a permit from the
The plaintiff, moreover, failed to show that he had performed the contract on his part. He testified that he “ had not himself performed any of said work, but all of said work had been performed by one Daniel O'Connor,” and O’Connor also testified to the same
The judgment and order are reversed.
Garoutte, J., and Van Fleet, J., concurred.