De Haven v. Berendes

SMITH, C.

This is an appeal from a judgment for defendants in a suit brought by the plaintiff, as assignee of B. Donnelly, to enforce a street assessment.

The land in question is a lot of the defendant Mrs. Berendes, fronting on K Street, between Tenth and Eleventh avenues, in the city and county of San Francisco; and the assessment was for the grading, curbing, and macadamizing of the southerly half of K Street and adjoining sidewalk, between the avenues named. The complaint contains all the averments necessary to show the validity of the assessment, and, among others, the averment that the “resolution ordering the work to be done” was “duly made and passed” by the board of supervisors. This allegation is denied by the answer; and the issue thus made presents the only questions that will require consideration.

The only findings in the case are, in effect, that on or about November 1, 1897, the defendants entered into a contract with Donnelly “to perform street work in front of the property” in question, and, the work having been performed to their satisfaction, paid him in full therefor; that this work was embraced in the work subsequently awarded to Donnelly by the board of supervisors, and provided for in his contract; and that no work was done on the lot in question by the plaintiff, to whom Donnelly’s contract was assigned immediately after it was awarded.

The last finding is attacked in the specifications as being unsupported by the evidence; but the point is not urged in the appellant’s brief, and does not seem to be well taken. The other specifications go rather to the sufficiency of the findings than to the sufficiency of the evidence to justify them. The sole question, therefore, is as to the sufficiency of the findings to support the judgment.

The findings are not as explicit as they might be with regard to the character and amount of work performed by Donnelly under his contract with the defendants. But it is found that the “plaintiff . . . performed no work in front of the prop

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erty” in question; and from this it must be inferred that the work done by Donnelly for the defendants was not only embraced in, but was coextensive with, the work in front of defendant’s lot, subsequently ordered by the board of supervisors ; and also that it conformed to the requirements of the law as to grade, etc., and was satisfactory to the street superintendent. For, by the express provisions of the law, these were necessary conditions to the acceptance of the work and the subsequent assessment (Finlayson’s Street1 Laws, sec. 6, p. 61; sec. 8, p. 84); and it must be presumed “that official duty has been regularly performed.” (Code Civ. Proe., secs. 1959, 1963, subd 15.) “The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon; and whenever from the facts found by it other-facts may be inferred which will support the judgment, such -inference will be deemed to have been made by the trial court.”'