Kennedy v. City of Gustine

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THE COURT.

The following opinion, prepared by Mr. Presiding Justice William M. Pinch of the District Court of Appeal, Third Appellate District, while sitting as a justice pro

tem.,

of this court, is adopted as the decision of the court:

The defendant is a city of the sixth class. At the times herein mentioned it had no city engineer, unless it can be said that the plaintiff was appointed to that office. The relation between the parties is shown by the minutes of the board of trustees of defendant and the contract entered into between the trustees and the plaintiff. In the minutes of July 12, 1920, the following appears: “Mr. C. C. Kennedy from Berkeley being present, talked with the board in regard to street grades and so forth for the city of Gustine. On motion made and seconded, Mr. C. C. Kennedy was appointed as city engineer, his compensation to be seven per cent of cost of construction work.” The minutes of August 16, 1920, recite: “The agreement between C. C. Kennedy and the City of Gustine was read, a motion was made and recorded that the president of the Board of Trustees be authorized to execute agreement.” Thereupon, at the same time, the agreement referred to was executed by the president of the board and the plaintiff. The agreement provides :

“This agreement made and entered into this 16 day of August, 1920, by and between the City of Gustine, State of California, and a city of the sixth class, party of the first part, and C. C. Kennedy, of the County of Marin, State of California, the party of the second part, witnesseth:

“That for and in consideration of the compensation to be paid by the party of the first part to the party of the second part at the times and in the manner hereinafter provided, the party of the first part hereby employs said party of the second part as City Engineer of the said City of Gustine, for the purpose of performing the engineering work and supervising the construction of certain street improvements in said City of Gustine, namely: The construction of curbs, sidewalks and pavement upon [naming certain streets] during the present and next succeeding calendar year.

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