Strauch v. San Mateo Junior College District

THE COURT.

This is an action to recover the value, or in lieu thereof the possession, of certain electrical heating equipment furnished by the plaintiff to the defendant. The cause was submitted to the trial court upon an agreed statement of facts. Findings and conclusions of law were expressly waived and judgment was entered against the defendant for the value of the equipment.

The facts are as follows: About the month of December, 1927, the clerk of defendant’s board of trustees placed an order with plaintiff for several electrical heaters to be installed in defendant’s school building, the price being $1950. Thereafter the equipment was installed, and defendant has ever since used the same for heating purposes. The order was given without a previous notice or call for bids by the trustees, and no bid was made by plaintiff. At the time the order was placed and the equipment delivered no emergency existed whereby any repairs, alterations, work or improvement was necessary to permit the continuance of existing school classes, and the order was not placed or accepted pursuant to the unanimous or any vote of the trustees of defendant or with the approval of the county superintendent of schools of San Mateo County. At the time the order was placed and accepted defendant did not have an average attendance of 1,000 or more pupils as shown by the report of the county superintendent of schools for the preceding school year, and the trustees had not

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previously secured from responsible bidders three or any estimates of the cost of furnishing such or similar equipment to the district. The parties agreed that the reasonable value of the equipment is the sum for which judgment was entered; that the equipment has not been permanently attached to the school building and could be removed and returned to the plaintiff without injuring the building; that demand that the price of the equipment be paid, or in lieu thereof that the equipment be returned, has been made, which demand the defendant refused; that the refusal is based solely on the ground that the contract for the purchase of the equipment was not entered into in compliance with the provisions of section 1612 of the Political Code as amended in 1927 (Stats. 1927, p. 204).

It is admitted that there was no attempt to comply with the provisions of the above section, and that under the general rule in such cases there is no contractual obligation to pay for the equipment and that the value thereof cannot be recovered in an action of