Sweet v. Vista Irrigation District

JENNINGS, J.

This appeal has been taken from the judgment of the trial court dismissing the action and awarding costs to the defendant and from the court’s order sustaining defendant’s demurrer to plaintiff’s amended complaint without leave to amend. Since the order sustaining the demurrer furnished the basis for the judgment of dismissal, plaintiff makes this order the special object of attack on his appeal.

The amended complaint contains the following allegations: That in the month of July, 1931, defendant published a notice inviting bids for trenching and for hauling and welding steel pipe; that pursuant to said call for bids plaintiff submitted his proposal for doing the work and that Avhen the bids were opened it was discovered that plaintiff’s proposal was the lowest bid submitted and it was accordingly accepted by defendant; that an outline of work and specifications therefor were presented to plaintiff by defendant ; that on August 8, 1931, plaintiff and defendant entered into a written contract for the performance of the aforesaid work; that the outline of the work provided that plaintiff should do all the work required by the contract within one year and that each portion of the work to be done by plaintiff should be commenced within twenty-four hours after notice given to plaintiff by the engineer-manager of defendant; that said officer directed plaintiff to do certain trenching and hauling and welding and that pursuant to such direction plaintiff trenched and hauled and welded 6,848 feet of pipe; that plaintiff performed all conditions of the agreement which were required of him and has been ready and willing at all times to complete the work according to the contract but that defendant failed, neglected and refused to direct plaintiff to perform the balance of the

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work required by the contract to plaintiff’s damage in the sum of $2,727.12.

By appropriate reference the written contract executed on August 8, 1931, and the various preliminary instruments consisting of the notice inviting bids, plaintiff’s proposal, the outline of work, and specifications for the work were incorporated into the complaint. It may be observed that the aforesaid preliminary instruments were likewise declared to be essential portions of the contract by specific reference and that copies of said instruments were attached to said contract.