[708]
SHAW, J., dissenting
I dissent.
In my opinion the clause of the so-called specifications, upon which the validity of the assessment in the prevailing opinion is based, were not incorporated in the contract and proceedings leading up to the assessment, and formed no part thereof.
In the first place, the reference in the proceedings and in the contract are to things designated therein as “specifications,” and the extent of the incorporation of the documents thus designated into those proceedings and contract must be confined to that which constitutes the specifications alone. In
Baltimore etc. R. R. Co.
v.
Stewart,
79 Md. 487, [29 Atl. 964], speaking of a reference of this character in a building contract, the court says: “The term ‘specifications,’ as thus used in contracts of this kind, ordinarily means a detailed and particular account of the structure to be built, including the manner of its construction and the materials to be used. ’ ’
In the second place, the purposes for which the documents called specifications are referred to are limited by the words in which the several references are couched. The proceedings and contract called for five separate classes of work, for each of which separate specifications were referred to. These specifications were evidently general specifications prepared in pursuance of some city ordinance and filed with the clerk, to be made applicable to all subsequent proceedings for the particular classes of work. The work required to be done by the contract and proceedings included the grading and graveling of the street, the construction of a cement curb along part of its course, a redwood curb along another part, a cement sidewalk, and a cobble-paved gutter. As an illustration of the method of reference, the ordinance of intention provided, with respect to grading and graveling, that the • street should be “graded and graveled in accordance with the plans and profile in the office of the engineer and specifications for the construction of graveled streets in the city of Los Angeles on file in the office of the city clerk of said city, said specifications being numbered 68,” and provided, with respect to curbing, that “a cement curb be constructed ... in accordance with specifications for constructing cement curbs, on file in the office of the city clerk, said specifications being numbered 54. ’ ’ Similar language was used with
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respect to each of the other classes of work. In the notice for street work, in the ordinance declaring that the work should be done, in the notice inviting proposals for the work, and in the notice of award of the contract, the language above quoted was repeated word for word with respect to each class of work. In the contract the references with respect to each particular class of work are again repeated in the same language as in the resolution of intention and other documents. It further provides that the contractor “promises and agrees . . . that he will do and perform, or cause to be done and performed, in a good and workmanlike manner, under the direction and to the satisfaction of the said street superintendent, all of the following work [here follows the descriptions with references as above mentioned], . . . according to the specifications on file in the office of the city clerk of said city, which are known as specifications Nos. 68, 54, 52, 55, and 51, and made part of this contract. ’ ’
The specifications provide with great detail the manner in which the work is to be done and the materials of which it is to be composed. Each is prefaced by a heading indicating the purpose for which it was originally adopted by the council. For instance, that relating to the cement curbs is as follows: “Specification No. 54. For the construction of cement curbs in the City of Los Angeles.” The others are in the same language, thus demonstrating that the specifications were prepared as specifications of construction alone. There is nothing in the proceedings, or in the contract, expressing any purpose to refer to the specifications for the details respecting the rights, obligations, or liabilities of the contractor or of the city. The two clauses in the documents, called specifications, which are supposed to create liabilities against the contractor, and which are declared to have the effect of making the entire proceedings invalid, have no reference whatever to the construction of the work required to be done nor to the materials of which that work is to be composed. It is true that the contract, after referring to the specifications, contains the statement that they are made part of the contract. This language, by grammatical construction, is limited in its meaning to the specifications previously referred to, and manifestly relates solely to the specifications of the
[710]
manner of doing the work and the materials to be used therein. It does not have the effect of incorporating into the contract other parts of the document called specifications which have no reference whatever to the work, but only to the rights and liabilities of the parties. In
Short
v.
Van Dyke,
50 Minn. 286, [52 N. W. 643], the court, referring to the extent to which a separate document was made a part of a contract by a reference thereto, states that “if the reference be made for a particular purpose, expressed in the contract, it becomes a part only for that purpose.” In
Neuval
v.
Cowell,
36 Cal. 650, where other documents were referred to for matter of description, the court said that the other documents were admissible in evidence as part of the agreement to aid the contract in regard to the description, and that “for any other purpose they were foreign to the case.” This rule is in strict accordance with the rules by which contracts are to be construed. The document referred to, not being signed by the parties, is incorporated in it only for the purpose of supplementing the contract to the extent to which the contract itself is deficient, and its use must be confined and limited to the purpose for which it is adopted. The following cases are of similar effect:
Riley
v.
Brooklyn,
46 N. Y. 444
; Hopkins
v.
Rogers,
11 Tenn. 457.
There -is nothing in the cases referred to in the prevailing opinion upon this subject.. In all of those cases it was assumed without argument that the matter contained in the specifications, whether referring to the manner of doing the work or to the materials therefor or not, were a part of the proceedings or contracts in the particular ease. It does not appear that the proposition that the references did not include the specifications for the' purposes of incorporating the foreign clauses in the contract or proceeding was brought to the attention o.f the court.
The clauses quoted in the prevailing opinion constitute no part of the contract entered into by the contractor, nor of the proceeding upon which it was based. They did not refer in any respect to the manner of doing the work, the plan by which it was to be constructed, or the quality or character of the materials. It cannot be presumed that they would have any effect whatever upon the various bidders who may have intended to bid upon the work. These clauses are not
[711]
in fact incorporated, either in the proceedings referred to or in the contract. They could only become a part thereof by reason of the reference
•
and as the reference was not made for that purpose, but solely to describe the work and materials, they were entirely foreign to the case, and could have no effect upon the validity of the assessment.
Lorigan, J., concurred in the dissenting opinion of Justice Shaw.
Rehearing denied.