Gallagher v. J. W. Wright & Sons Investment Co.

CAMPBELL, J., pro tem.

T

his action is one to foreclose a public contract street improvement lien under San Francisco Street Improvement Ordinance of 1918. The contract was entered into under date of October 20, 1923. It provided that the work should be done within ninety days. This time expired January 18, 1924. On January 9, 1924, prior to the expiration of the time within which the work was to be completed, pursuant to a previous request by the contractor, the board of public works recommended to the board of supervisors the granting of the desired extension, and on January 21, 1924, three days after the expiration of the original time called for by the contract for the completion of the work the board of supervisors granted the desired extension, and the work was completed on February 19, 1924, within the life of the extension.

This appeal is limited to two points—both of law. The first point urged is that “this street assessment is void, as the work was not done within the time fixed by contract and the extension was not granted within the life of the contract,” and the second that “findings were not waived and there are no findings the basis of any judgment.”

The ordinance of 1918 under which the work was performed, in so far as it affects the question here presented, provides—quoting from section 18: “Upon the recommendation of the Board of Public Works, the Supervisors may by resolution passed by a majority vote thereof, grant extensions of time within which to complete the said work. No recommendation for an extension of time beyond the expiration of the time of the first extension shall be made by the Board of Public Works unless the application of the contractor therefor, in each instance, is supported by a certificate from the City Engineer certifying that at least

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the major part of the work contracted for has actually been done, or by evidence satisfactory to the said Board that the failure to have done the required measure of work was not due to lack of diligence in the prosecution of the work on the part of the contractor. All applicatioús for such extensions of time must be filed in the office of the Board of Public Works before the expiration of the original time fixed in the contract, or of the time granted by extension, as the case may be. In ease an extension of time be granted by the Supervisors after the expiration of the time originally fixed in the contract for the work, or after the expiration of the time granted in any further extension therefor, the time so granted shall be deemed to commence and be effective from the date of such expiration. ’ ’