Union Paving & Contracting Co. v. McGovern

[639]

HARRISON, J.

Action upon a street assessment.

1. Within ten days after the publication and posting of the notice of the improvement, the owners of a majority of the frontage upon the work delivered to the clerk of the board of supervisors written objections to the same. No further steps were taken until the expiration of six months, when the board of supervisors ordered the work to be done without again passing a resolution of intention therefor. Under the rule declared in

City Street Imp. Co. v. Babcock,

123 Cal. 305, the proceedings in relation to doing the work were without authority, and no lien was created by the assessment therefor.

3. After the contract had been awarded, certain owners of property fronting upon the work, including the respondent McGovern, entered into an agreement November 14, 1895, with one S. E. Tucker, by which the property owners agreed that they would elect to do the work and enter into a written contract therefor with the superintendent of streets at the prices at which it had been awarded, and would assign and transfer said contract to Tucker in consideration that he would perform said work “as to them” at certain prices—less than those at which the work had been awarded—and Tucker agreed that he would perform said work for them at said prices. Contemporaneously with the signing of this agreement, and as a part of the same transaction, McGovern and the other property owners entered into a property owners’ contract with the superintendent of streets for doing the work ordered by the board, and assigned the same to Tucker. By virtue of several assignments of this contract, the plaintiff became the owner thereof, March 4, 1896. The work provided for in the contract included six blocks, and on July 30, 1896, it having been shown to the board of supervisors that two blocks had -been completed, that body directed the superintendent of streets to make and issue a “proportional assessment” on these blocks for the work then done. Under this order the assessment on which this action is brought was issued August 3, 1896.

It is contended by the appellant that by virtue of these facts McGovern is estopped from questioning the validity of the contract and assessment. We are unable, however, to accede to this proposition. In an action to foreclose a lien upon land for