City of Sacramento v. Kirk

Terry, J., delivered the opinion of the Court—Murray, C. J., concurring.

The defendant, Kirk, contracted with the plaintiff to construct a reservoir and aqueducts in the city of Sacramento, according to certain specifications contained in a written contract between the parties—the other defendants, becoming Kirk’s sureties for the performance of the contract on his part. This action is instituted to recover damages arising from a breach of said contract.

The first error assigned is the admission in evidence of the written contract between the parties. To its admission, two objections were made.

First, That said written contract had been superseded by a subsequent parol agreement. And,

Second, That no foundation had been laid for its introduction by proving that P. H. Burnett and Jas. B. Hardenbergh, who signed the contract for plaintiff, were authorized to do so.

It is shown, that the mayor of the city and the chairman of the committee on contracts and expenditures, were authorized by ordinance to sign the contract on behalf of the city. It is, also, shown, that at the date of the contract, J. B. Hardenbergh was mayor, and P. H. Burnett chairman of said committee, and that the contract was duly signed by them, and the building erected under it.

The second error assigned is, the refusal of the Court below to permit defendants to prove a parol change of the contract. This point is not well taken. The city of Sacramento, by the terms of its charter, could ojily act through its corporate authorities, and the original contract being authorized by ordinance, any alteration in it could only be shown by ordinance, or some properly authenticated act. The object in offering this evidence [421]appears to have been, to show that the reservoir was not, in fact, constructed according to the specifications in the written contract, and that plaintiffs, with a knowledge of the fact, accepted and paid for it.

We do not see how the defendants are injured by the acceptance of the work which was not done according to the contract, nor upon what principle the neglect of plaintiff to proceed against defendant for the first breach of the contract, would operate to release his sureties from liability for subsequent breaches.

The damages ¡.claimed do not" arise from any insufficiency or defect in the reservoir, but from defects in the aqueducts, in regard to which, it is not pretended there was any departure from the terms of the contract.