Petaluma Paving Co. v. Singley

SMITH, C.

Judgment was rendered for the plaintiff in the court below, but on motion of the defendants a new trial was granted, from which order the plaintiff appeals. The suit was brought to enforce the lien of a street assessment. The complaint is in the ordinary form, setting forth the several acts of the municipal authorities required by the law; and on the trial all its allegations were admitted except the following,—corresponding respectively to the eighth, eighteenth, and twenty-ninth findings of the court:—

“Section seven . . . : ‘That before passing the resolution for the construction of the said work or improvements, plans and specifications and careful estimates of the costs and expenses thereof had not been required by it to be furnished to the said board of trustees by the city engineer of the said city, but special specifications had been furnished by him. . . .’

“Section seventeen . . . : ‘That the plaintiff did and caused to be done all the work in said contract and specifications mentioned, and duly performed on its part in every respect the said work according to the specifications and the terms of the contract with its extensions of time. . . .’

“Section twenty-six . . . : ‘That the plaintiff by virtue of the said act, and by reason of the warrant, assessment, certificate, and diagram, and of the various acts done as aforesaid, has and holds a lien upon the lots and parcel of land above described and alleged to have been separately assessed as aforesaid to secure the said several sums of money so separately assessed against the said lots and parcel of land and the unknown owners thereof, as above set forth, and that the sums are, by the statutes in such cases made and provided, due and payable. ’ ”

[618]

These allegations were denied by the defendants’ answer, but found to be true by the court.

The grounds of the objection to the eighth finding is that “the evidence does not show that plans, specifications, and careful estimates for the said work were not required by the board of trustees of the city engineer,” or that “any special specifications were required or furnished by the city engineer for said work.” On neither of these points was there any direct evidence; but with regard to the first it did not devolve upon the plaintiff to prove his negative allegation (Code Civ. Proc., sec. 1869); and with regard to both the evidence establishing the plaintiff’s