Dunne v. Altschul

McKee, J.: This appeal is from the judgment and the order denying motion for a new trial, in an action to recover a street assessment in San Francisco, for work ordered by the Board of Supervisors, in constructing a brick sewer, with manhole and cover, in crossing of Broderick and Geary streets, with cesspools, culverts, curbs, and sidewalks on angular corners thereof.

It is contended that the work was required to be done of patented materials, and that the Court below erred in not finding as a fact, from the evidence in the case, that work of that character was required. '

As appears from the transcript, the only evidence of the alleged fact is, that the Superintendent of Public Streets kept in his office during the year 1877, as sample plans for work which might be ordered, certain castings usable for corners, marked as follows: “Patented December, 1864, George T. Bowen.” The superintendent also testified that “ contractors were required and did use them,” but he did not know whether they were patented or not. A witness who had examined the work also testified that the iron covers and corner irons of the work [474]performed by the plaintiff, under his contract, were marked or molded with the words “ Patented December, 1864, George T. Bowen.” This evidence, about which there is no conflict, is claimed to be conclusive that the materials used in the work were patented articles, and it is contended they were required, because they were used.

But the requirements of a contract for work ordered by the Board of Supervisors, under the street law of the city, cannot be inferred from the use of a material in the performance of the contract. It is conceded in the case in hand that the contractor duly performed his contract. The work was therefore done in a workmanlike manner, and was approved and accepted by the superintendent. Ho fault is found with the performance of the contract, or with the materials used by the contractor. Both were entirely satisfactory ; and the only question is whether the articles used, assuming that they were patented articles, were required by anything in the contract itself, or the record of the proceedings of the Board of Supervisors which authorized it. If the materials used were not required, the contractor was at liberty to use them or any others in the performance of his contract. The use of them, under such circumstances, would not avoid his contract, or affect the work done under it, if the work itself was otherwise properly done. But if the work was required to be done of patented materials, either by the resolution of intention which authorized it, or by anything in the contract between the plaintiff and the city, or in the proceedings of the Board of Supervisors, it would have been unauthorized, and the contract for performing it would have been void and unenforceable against the property owner; not, however, because of the materials used in it, or of any defect in the work, but because the authorities had no jurisdiction to order it done at all—as was held in the Nicholson Pavement Cases, 35 Cal. 695, 699. But in those cases the record of the proceedings by which the work was ordered showed upon its face that the work was required to be of patented materials, of which one man alone had the monopoly—• being the owner of the patent; and as there could be no competition between bidders, it was held that the Board of Supervisors had no jurisdiction by the street law under which