Alameda MacAdamizing Co. v. Pringle

[227]

COOPER, C.

This action was brought to foreclose a street assessment lien under an assessment issued by the superintendent of streets of the city of Oakland. Defendants recovered judgment, and this appeal is by plaintiff from the judgment and order denying a new trial. It appears that the contract was let under the street law, and an ordinance duly adopted by the city, which provided, among other things, that all persons bidding for street work shall “file a bond in the sum to be determined by the mayor guaranteeing the work for one year from injury by ordinary use.” Was this specification authorized by the statute, and did it increase the burdens of the property owner? We think it was unauthorized by the statute and that it increased the burdens of the property owner and made the contract and assessment void.

(Brown v. Jenks,

98 Cal. 12;

Burnett v. Llewelyn,

32 Pac. Rep. 702.) In the first case cited the provision required the contractor to give a bond “for keeping the streets so improved in thorough repair for the term of five years from the completion of the contract,” and it was held that the provision was not authorized and rendered the -contract and lien void. In the opinion it is said: “The bond is not only unauthorized by the words of the statute, but by the requirement changes, and may increase the burdens of the property owner. It is manifest that the obligation to keep the street in repair for five years is a burden which one would not undertake for nothing. Therefore, a contractor would charge a higher price for the work when he was forced to contract also for repairs. The expense undertaken is indefinite, and the property owner must pay for them in advance, whereas the statute provides for repairs after the necessity for them appears. Then, it being contingent, he will be paying for repairs which may never be required.”

It is said that the provision here only guarantees the work, and does not require the contractor to keep the streets in repair, as was the case in

Brown v. Jenks, supra.

But we are unable to draw any such nice shades of distinction. The contractor under the bond was bound “to guarantee the work for one year from injury by ordinary use.” It is a self-evident proposition that the use of a paved or macadamized street by the traveling