Himmelmann v. Woolrich
Synopsis
Complaint on Street Assessment in San Francisco.—An averment in a complaint in an action to recover upon a street assessment in San Francisco, that “ the said Superintendent duly made an assessment to cover the sum due for the work performed and specified in said contract, including the expenses thereof,” is a sufficient averment of the assessment.
Idem.—It is not necessary to aver in such complaint that the Board of Supervisors ordered their Cleik to sign the resolution of intention to grade a street.
Idem.—It is not necessary in such action to aver that notice of the intention of the Board was given in th'e resolution, nor to give the name of the official newspaper; and it is sufficient to aver that the contract “ was in the form and contained the notices, matters, and conditions prescribed bylaw,” and to aver that the work was completed within the time fixed by the Superintendent.
Demand and Beturn.—An agent of an assignee of a street contractor is competent to make the demand of payment of the assessment, and to make return of such demand on the warrant.
By the Court: Judgment passed for the defendants below upon demurrer to the complaint.
1. The first ground of demurrer argued in the respondent’s brief is that the complaint does not show that the assessment sued on contained the several requisites set forth in sections eight and nine of the San Francisco Street Law.
Upon looking into the complaint, however, we see that it is drawn in conformity with the requirements of the Act of 1869-70 (page 899, Sec. 9), prescribing what it shall be necessary for a complaint to aver in an action of this character.
2. The second ground relied upon is that it is not averred “ that the Board ordered or directed their Clerk to sign the resolution of intention.” '
■ This objection is not tenable in view of the provisions of the statute already referred to.
3. The third, fourth, fifth, and sixth grounds of demurrer argued here are not well taken; they are all answered by reference to the provisions of the statute already referred to, by which it will be seen that the supposed omissions and insufficiencies in pleading pointed out in these several grounds of demurrer are cured.
4. The seventh and eighth grounds of demurrer insisted [252]upon are that the demand and return do not appear to have been made by the contractor, or his agent or assignee, but only by the agent of such assignee.
We think, however, that the agent of the assignee is competent for both purposes.
Judgment reversed, and cause remanded, with directions to overrule the demurrer.
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