Schindler v. Young

SHAW, J.

Action to recover

the amount of an assessment levied for street improvement against a lot owned by defendant C. C. Young.

[19]

Defendant interposed a demurrer upon the ground that the second amended complaint failed to state facts sufficient to constitute a cause of action. The court sustained the demurrer and denied plaintiff’s right to further amend, stating as a reason for such denial that it satisfactorily appeared to the court that plaintiff could not amend his complaint so as to state a cause of action. Judgment was thereupon rendered for defendant, from which plaintiff prosecutes this appeal.

We regret that respondent has not deemed the case of sufficient importance to justify him in filing points and authorities, or otherwise attempting to aid the court in arriving at a decision upon the appeal. In the absence of any suggestion on his part directing our attention to other alleged defects in the voluminous complaint, which, with exhibits, covers some thirty-five pages of the transcript, we shall assume, as stated by appellant, that the chief ground upon which the ruling of the court was based was a clause in the specifications under and in accordance with which the proceedings were, had and taken and the work required to be done. _ This clause is as follows“The contractor will be required to observe all the ordinances of the board of trustees in relation to the obstruction of streets, keeping open passageways and protecting the same where they are exposed and would be dangerous to public travel, and he will be held responsible for all damages the city may have to pay in consequence of his failure to protect the public from injury.”

The court, no doubt, had in view the principle applied in

Brown

v.

Jenks,

98 Cal. 10, [32 Pac. 701],

Blochman

v.

Spreckels,

135 Cal. 662, [67 Pac. 1061], and like cases. In the former ease, the specifications required the contractor to give a bond with sureties conditioned for the keeping of the street so improved in thorough repair for a period of five years from the completion of the contract. It was not only held that requiring the bond was unauthorized, but that such requirement changes and may increase the burdens of the property owner in that the contractor must charge a higher price for the work by reason of having to keep the street in repair. Clearly, its effect was to impose a duty upon the contractor other than that which the law imposed and as to