True v. Fox, 102 P. 263

True v. Fox

102 P. 263 | Cal. | 1909

Lead Opinion

This is an action to cancel a bond issued upon a street assessment and to enjoin the execution of a deed pursuant to a sale in the proceedings. Judgment was given for the plaintiff cancelling the bond. The defendant Fox appeals.

The contract for the street improvement in question required the work to be done under specifications which provided that "All loss or damage arising from the nature of the work to be done under this agreement . . . shall be sustained by the contractor." The presence of this stipulation, in a street-improvement contract, has been held to render the assessment and all subsequent proceedings therein void, in repeated decisions of this court. (Blochman v. Spreckels, *535 135 Cal. 665, 67 P. 1061]; Goldtree v. Spreckels, 135 Cal. 673, [67 P. 1091]; Woollacott v. Meekin, 151 Cal. 701, [91 P. 612];Van Loenen v. Gillespie, 152 Cal. 222, [96 P. 87]; Hatch v.Nevills, 152 Cal. 16, [95 P. 43]; Stansbury v. Poindexter,154 Cal. 769, [99 P. 182].)

Upon the authority of those decisions and upon the reasons stated therein, the judgment is affirmed.

Lorigan, J., did not participate in the foregoing decision.

Dissenting Opinion

We dissent from the judgment for the reasons given in the dissenting opinion in Woollacott v. Meekin, 151 Cal. 708, [91 P. 612].