Chapman v. Rudolph

TYLER, P. J.

This is an action to quiet title to certain real property. The complaint is in the usual form. It is alleged therein that defendant Rudolph is the duly appointed and acting treasurer of the city of San Jose, and that the defendant Elliott and Horne Company is a corporation; that both defendants assert an interest in, or lien upon, the land described in the complaint, adverse to the claim and ownership of plaintiff, and that such claim is asserted wholly without right.

The city treasurer filed a general denial. Defendant Elliott and Horne Company also denied ownership in plaintiff, and, as an affirmative defense, set up an interest in the land arising under a sale for nonpayment of a bond issued for street improvements.

The work for which the bond was issued was "alleged to have been performed pursuant to the provisions of the city charter of San Jose, of the so-called Vrooman Act (Stats. 1885, p. 147, as amended), and of the Street Improvement Bond Act approved in 1893 (Stats. 1893, p. 33). The contract called for the grading of the street, the installation of a concrete base thereon, and an asphalt top. The issues in the case involve the validity of the award of the contract and certain subsequent proceedings. No objection was made to the jurisdiction originally acquired by the city council to order the work performed. Trial was had and judgment went for plaintiff. Defendant Elliott and Horne Company have appealed from the judgment, after denial of its motion for a new trial. Defendant Rudolph has no further interest in the result of the litigation and has not appealed.

Plaintiff claimed below, and does here, that the assessment upon which defendant relied to prove his interest in the land was void for the reasons: 1. That the award was not made to the lowest bidder; 2. That the work was not done “after the award’’; and, 3. That a defective sale was made by the city, treasurer.

With reference to the first and second objections, it appears in evidence that there were two bids presented for

[235]

the doing of the work, one by Ira T. Bridges, for eight cents per square foot; the other by the Raisch Improvement Company for forty cents. By a unanimous vote of the council the bid of Bridges was rejected and the contract was awarded to the Raisch Improvement Company, it being determined by the council that this company was the lowest regular responsible bidder. At the session of the council when the contract was let it appeared that Bridges was a plasterer and had no asphalt plant or roller. It also appeared that the Raisch Improvement Company had, prior to this time, done work upon the street, in front of the lot in question, under a private contract. This work was performed at the request of the owner of the lot, and consisted in the grading and putting in of a concrete base upon the assurance and with the understanding that the' owner would sign a contract for the same. It further ap-, peared that when the asphalt surface was ready for placement the owner refused to sign, and indicated that he would not pay for the improvement. Bridges, in presenting his bid, intended to avail himself of this work which was performed by the Raisch Improvement Company, and merely intended under his bid to furnish the asphalt surface.