First National Bank v. City of Whittier

[218]

SCHMIDT, J.,

pro tem.

On March 30, 1925, appellant, City of Whittier, a city of the sixth class, entered into a contract with Erdman Company for the construction of a cement culvert at an agreed consideration of $2,214.61. Afterward, on April 30, 1925, the Erdman Company in writing assigned and transferred to respondent, First National Bank of Monterey Park, all its interest in and to said contract. On May 1, 1925, respondent sent said assignment to the city clerk, who indorsed upon it the following: “Contract dated 3/30/25 and assignment dated 4/30/25 on file in the office of the city clerk of the City of Whittier. Paul Gilmore, city clerk. Seal.” Thereafter the Erdman Company completed the work and on June 8, 1925, in spite of its assignment to respondent, filed with the city clerk a claim and demand in writing for $1494.86, the balance due on the said written contract of March 30, 1925. On June 10, 1925, the claim of the Erdman Company was allowed by the city council of Whittier in the sum named, $1494.86, and a warrant was drawn and delivered to the company for its payment. The treasurer’s check issued thereon was cashed by the Erdman Company through the respondent bank. Almost two years after the work had been completed under the contract and the warrant for $1494.86 had been paid to the Erdman Company, namely, on the twenty-fourth of May, 1927, respondent, claiming under the assignment, presented to and filed with the city clerk of the City of Whittier its claim and demand for the said sum of $1494.86. The claim was disallowed and rejected by the city council, whereupon' suit was instituted in the lower court. The facts were stipulated to as hereinbefore set forth. From a judgment o'f the lower court in favor of the respondent bank the City of Whittier has appealed to this court.

The sole question for consideration is the effect of ordinance No. 17 of the City of Whittier in force during all of the time involved herein. Section 2 thereof provides: “The board of trustees must not hear or consider any claim in favor of any public officer, person, corporation, company or association against the city, nor shall the board credit or allow any claim or bill against the city, unless the same be itemized . . . and is presented and filed with the clerk of the board within a year after the last item of the account