236 P. 981 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *189 The plaintiff brought this action to enjoin the defendants from issuing bonds for the cost of the improvement of certain streets in the town of Sebastopol. Judgment was entered in favor of defendants and plaintiff has appealed.
The resolution of intention to make the improvement stated that the work would be done under the Improvement Act of 1911 (Stats. 1911, p. 730) and amendments thereto and that serial bonds to represent unpaid assessments would be issued in the manner provided by the Improvement Bond Act of 1915 (Stats. 1915, p. 1441) and amendments thereto. The record does not disclose the terms of the contract under which the improvement was made.
Appellant's first point is that "the proceedings are void because they require the contractor to purchase materials from Warren Brothers at a fixed price, thereby preventing competitive bidding." The "objection . . . is not that a patented material is specified, but that the proceedings are so framed that only one person or firm can be dealt with." The resolution of intention prescribes that the street shall be graded, a water-bound macadam four inches in thickness placed thereon, upon which shall be laid a two-inch pavement of "asphaltic concrete, with one and one-half inches of Warrenite Bitulithic wearing surface." A subsequent clause reads as follows: "Attention is called to Warrenite Bitulithic License Mixture Agreement of Warren Brothers Company, of Boston, Massachusetts, in relation to the above described work, and dated August 22nd, 1921, and on file in the office of the town clerk of said town of Sebastopol." The agreement referred to in the resolution of intention is in the general form of that considered in Warren Brothers Co. v. Boyle,
Certain parts only of the specifications appear in the record. It appears that the following clauses, and in the order here given, are contained therein: "Bitulithic Cement: Bitulithic cement is produced under the direction, laboratory supervision of, and using ingredients approved by Warren Brothers Company. . . . Warrenite-Bitulithic Wearing Surface, Gravel Aggregate — One and one-half inches: Wearing Surface: On the foundation prepared as hereinbefore specified, shall be laid the Warrenite-Bitulithic wearing surface described below, so as to have a thickness of one and one-half inches after thorough compression. Said wearing surface shall be composed as follows." Then follow specifications of the ingredients to compose such wearing surface and the methods of producing, laying and rolling the same, The board of trustees duly advertised for bids for making the proposed improvements and received five bids therefor. *191 On the 14th of October, 1921, a resolution was adopted awarding the contract to the successful bidder. On the eighth day of the following November this bidder entered into a contract with the superintendent of streets to do the work. There is no contention that the work was not properly done in strict compliance with the specifications.
Nicholson Pavement Co. v. Painter,
The license agreement is dated August 22, 1921. The resolution of intention was adopted August 26, 1921. It fixed *192 September 19th as the day upon which objections to the proposed improvement would be heard. Bids for doing the work were opened and the contract awarded October 14th and the contract was executed November 8th. Appellant contends that Warren Brothers Company agreed to furnish material during a period of four months only from August 22d and that therefore the contractor was allowed but forty-four days after the execution of the contract in which to purchase the specified materials from the company. It is argued that under such circumstances no one could safely bid for the work without further assurance from the company that it would furnish such materials after the expiration of the four-month period, an assurance which the company could give or refuse at its pleasure, and that therefore free competitive bidding was not possible. In view of the circumstances under which the license agreement was executed and filed, the nature of the work to be done and the length of time required to take the statutory steps leading up to the execution of the contract, it is somewhat uncertain whether the limitation of four months relates to the furnishing of the materials or to the execution of the contract to do the work. Under familiar rules of construction, the license agreement is to be construed most strongly against the company. [2] If it be construed in accordance with appellant's contention, however, it cannot be held on this appeal that forty-four days was not a reasonable time within which to complete the work. Neither the terms of the contract nor the extent of the work to be done are shown. Nor was any evidence produced to show the length of time which was reasonably necessary for the completion of the work. [3] Whether or not the time allowed was reasonable is a question of fact and not of law. It does not appear within what time the work was actually completed, but it was shown that the company at no time withdrew its offer to furnish the required materials at the price stated in the license agreement. [4] The fact that such materials could be purchased from no one but the company is not material, otherwise patented materials could not be used, even though authorized by the statute, because the owner of a patent can always control the production and the price of the article patented.
[5] The specifications provide: "All loss or damage arising from any unforeseen construction or difficulties, either *193
natural or artificial, which may be encountered in the prosecution of the work, shall be borne by the contractor." Appellant contends that the proceedings are void because the foregoing provision imposes "an unwarranted burden upon the contractor in regard to damages," citing Blochman v.Spreckels,
[6] The act provides for the issuance of a warrant by the superintendent of streets, authorizing the contractor to demand and receive from property owners the amounts of their several assessments for the cost of work done. Section 25 provides: "The warrant shall be returned to the superintendent of streets within thirty days after its date, with a return attached thereto signed by the contractor or his assigns or some person in his or their behalf, verified upon oath, stating the nature and character of the demand. Thereupon the superintendent of streets shall record the return so made with the record of the warrant and assessment either in the margin of said record or in the same book with and immediately following the record of the assessment; . . . and shall sign the record. . . . If any contractor shall fail to return his warrant within the time and in the form provided in this section, he shall thenceforth have no lien upon the *194 property assessed." (Stats. 1921, p. 309.) The required return was made in this case and the superintendent of streets recorded the same and signed the record thereof. The original return was then delivered to the agent of the contractor's assignee, who took it away with him. Appellant urges that the statute requires the warrant and the return attached thereto to be filed and left with the superintendent of streets and that therefore the foregoing acts did not constitute the return required by the statute. The statute does not expressly provide that such warrant and return shall be filed, and appellant's argument is based upon the use of the words "returned" and "return" as used in the act. No authorities are cited, except such as relate to returns of writs or processes in judicial proceedings. The warrant was the contractor's evidence of his right to collect unpaid assessments. That right did not cease with the return required by the statute. Section 27 of the act provides that, at any time after the period of thirty-five days from the date of the warrant, the contractor or his assigns "may sue, in his own name, the owner of the land, lots or portions of lots, . . . and recover the amount of any assessment remaining unpaid," and that, in any suit so brought, "the said warrant, assessment, certificate and diagram, with the affidavit of demand and nonpayment, shall be held prima facie evidence of the regularity and correctness of the assessment and of the prior proceedings and acts of the superintendent of streets and city council upon which said warrant, assessment and diagram are based, and like evidence of the right of the plaintiff to recover in the action." It cannot be presumed, in the absence of an express provision to that effect, that it was the legislative intent to require a contractor to surrender possession of the evidence of his right of action.
[7] The verified return, in so far as material here, is as follows:
"J.B. Piatt, being duly sworn, says he is the agent of the assignee of the contractor named in the annexed engineer's certificate, assessment, diagram and warrant. . . .
"UNITED STATES NATIONAL BANK OF PORTLAND, OREGON,
"By J.B. PIATT, Agent." *195
In the record of the return made by the superintendent of streets the name "J.B. Piatt" at the beginning thereof was omitted. Subsequent to the recording of the return, upon the hearing of the appeal of plaintiff and others to the board of trustees, the board adopted a resolution directing the superintendent of streets to correct the error in the record by inserting therein the name of "J.B. Piatt." The superintendent thereupon made the correction.
In A.P. Hotaling Co. v. Brogan,
The judgment is affirmed.
Jones, J., pro tem., and Plummer, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 1, 1925. *196