Bond v. City of Pasadena

SHENK, J.

This is an appeal from a judgment in favor of the defendant city. The plaintiffs sued on a warrant issued by the city on an assessment and diagram after the completion of the work of Ducey and Breitenstein, contractors and assignors of the plaintiffs herein. The warrant was issued in the sum of $13,213.01, and represented the amount payable from the general or other appropriate fund of the city for intersections in connection with a proceeding for the improvement of Lake and other streets, conducted under the provisions of the Street Improvement Act of 1911 (Stats. 1911, p. 730), and the city charter (see. 4, art. IX).

The city resisted the payment on the ground that Ducey and Breitenstein were indebted to the city in an amount of approximately $55,000, claimed by the city to have been an overpayment to them as contractors, in connection with another and separate proceeding for the improvement of Linda Vista Avenue and other streets, under the Municipal Improvement Act of 1915. (Stats. 1915, p. 99.)

The trial court found that the plaintiffs’ said assignors, at the time of the issuance of the warrant sued on, were indebted to the city in the sum of $43,156.18, which was later reduced to final judgment in favor of the city by stipulation of the parties in the cause entitled: ‘ ‘

City of Pasadena, a municipal corporation, individually and as trustee,

v.

William F. Ducey and Thomas C. Breitenstein, et al.”,

number 301,132 in the files of the Superior Court in Los Angeles County. The judgment was entered herein in favor of the city pursuant

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to the authority of section 5 (formerly section 12) of article XI of the charter of said city providing as follows: “No demand shall be approved by the city controller in favor of any person or officer, or the assignee of any person or officer, who is indebted to the city, without first deducting the amount of the indebtedness.”

The plaintiffs attack the judgment principally on the ground that since the amounts overpaid to the plaintiffs’ assignors, and for which the city obtained judgment in the' other action, were paid from special bond funds of Municipal Improvement Districts numbered 3 and 8 in said city, it necessarily follows that the city, in disbursing those funds, was acting in the capacity of trustee for said improvement districts, and that mutuality in the matter of set-off, therefore, did not exist, citing