Wyckoff v. Force

NOURSE, J.

Plaintiff sued in

mandamus

to compel the defendant Force, as county superintendent of schools, to approve, and the defendant Taylor, as county treasurer, to pay, an order for $7,000 drawn by the trustees of the Salinas Union High School District in part payment for the services of plaintiff as architect in the construction of a new high school building. The complaint alleged that on May 11, 1920, the board of trustees entered into an agreement by the terms of which the plaintiff furnished to the school district plans and specifications for a school building and agreed to supervise and superintend the construction thereof until completion, and in consideration thereof the school district promised to pay plaintiff the sum of $20,000, “payable in indefinite installments from time to time as said work progressed, until said work was fully completed.” It was also alleged that plaintiff entered upon the per

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formance of the work pursuant to the agreement and that the building has not been completed or accepted by the school district. Allegations followed covering the issuance and presentation of the order, the demand for approval and payment, and the refusal on the part of the defendants.

The essential allegations of the complaint were admitted in the joint answer filed by the two defendants, and a special defense was set up in which it was alleged that prior to September 10, 1919, the school district duly issued bonds in the sum, of $250,000 for the construction of said high school building; that said bonds were duly sold and the proceeds thereof were deposited in the county treasury to the credit of the “Salinas Union High School District Building Fund, Bond No. 1”; that thereafter additional bonds for the same purpose in the sum of $150,000 were authorized, issued, and sold, and the proceeds were deposited in the county treasury and credited to the “Salinas Union High School District Building Fund, Bond No. 2”; that while there remained in the building fund proceeds of the sale of the first issue of over $249,000, the trustees entered into a written contract with plaintiff whereby plaintiff was employed to furnish architectural plans and specifications for said school building and to supervise and superintend the construction thereof, and in consideration thereof the school district promised to pay plaintiff six per cent of the contract price of said building, payment therefor to be made at specified times in proportion to the amount of services rendered, and all payments to be made from the moneys derived from the sale of said bonds; that thereafter, on the eleventh day of May, 1920, and after the second issue of bonds had been authorized, a verbal agreement was made modifying said contract by the plaintiff agreeing to accept $20,000 in full payment for. his architectural services; that on the first day of July, 1921, when plaintiff’s order was drawn, there was but $54.15 in the building fund of the high school district, and that this sum was expended and that there were no moneys in said fund derived from the sale of said bonds.