Williams, Belser & Co. v. Rowell

BEATTY, C. J.

In this case the superior court sustained .a general demurrer to the complaint, and, upon the plaintiffs declining to amend, entered a final judgment for the defendant, from which plaintiffs appeal. It appears from the complaint that the board of trustees of the town of Emeryville adopted a plan or system of sewers for the town, and that the plaintiffs entered into a written contract with the defendant and other lotowners by which they agreed to furnish the material and construct the whole system, together with the necessary Y branches, manholes, lampholes, etc., according to the plans and specifications of the town engineer as approved by the board of trustees, and to the satisfaction. of the engineer and said board; that the defendant and other

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owners of lots upon their part agreed in consideration of the performance of this contract to pay to the plaintiffs the sum of forty-five cents per front foot, according to their frontages set down with their signatures to the contract and representing the amounts of their individual frontage directly along the lines of the proposed sewers. It was stipulated that said rate of forty-five cents should include all manholes, lamp-holes, inspectors’ and engineers’ fees, and all incidental expenses, and also all work on crossings. But the respective lotowners were to pay for as many Y branches as they indicated in connection with their signatures, at the rate of a dollar and fifty cents each. The defendant was the owner of a lot fronting 129.57 feet on Auburn Avenue and the same length on Lulu Avenue, and she as the owner of said lot agreed to pay for the work done under the contract, $58.18 for 129.6 feet front at forty-five cents, and $4.50 for three Y branches, or a total amount of $62.68. The plaintiffs duly performed their contract, but defendant has failed to pay, and they seek in this action to enforce a lien against her lot for her share of the agreed price of the work and for costs, etc.

Defendant’s demurrer was general, for want of facts and lack of jurisdiction, and if it was rightly held by the superior court that plaintiffs had no lien to be foreclosed, the amount claimed under the contract was too small to give the superior court jurisdiction. The main, and in fact the only, question, therefore, which we have to decide is whether there was a lien. It is true the respondent makes some claim that the complaint does not show that the sewer was constructed in front of her lot, and it is true that in this respect the complaint is ambiguous and uncertain, but this was a defect that should have been pointed out by special demurrer. As against a general demurrer for want of facts, we think the complaint may be held to show with sufficient certainty that the sewer was laid for 129.6 feet in front of the defendant’s lot, and that three Y branches were placed in that part of the sewer for her accommodation. (Though as to this matter of Y branches it is immaterial whether the complaint shows a lien or not; they were separately provided for by a severable clause in the contract, and if the complaint established a lien for that part of the contract price determined by the frontage, it was error to sustain the demurrer.)