Mappa v. Council of Los Angeles

Ross, J.: In this case it appears that the Council of the City of Los Angeles, háving determined to grade and otherwise improve a portion of a certain street in that city called Olive street, entered into a written, contract with petitioners in the month of September, 1876, by the terms of which contract petitioners agreed to perform and complete the work on or before the fifteenth day of November, 1876, for which the Council agreed to pay them at certain rates out of moneys to be collected by assessments to be levied upon the property liable to be assessed for the improvements, pursuant to the charter of the city. It seems that before entering into the contract, the petitioners talked with the Surveyor of the city in regard to the probable amount of work involved in the undertaking, and that they were informed by him that it would probably involve the removal of about thirty-three or thirty-four hundred cubic yards of earth, whereas, in fact, it involved the removal of about ten thousand cubic yards. But the "circumstance that the Surveyor was so much mistaken in his estimate does not operate, in law, to relieve the petitioners of the consequences of their contract, whatever those consequences arc. The statute did not devolve on the Surveyor the duty of informing the petitioners in respect to the matter. Before contracting to perform the work within a stated time, they ought to have informed themselves in that regard, even if [311]they could not have done so “without taking a good deal of pains.”

The work was not completed within the time specified in the contract, and upon its expiration the Council instructed its Clerk to notify petitioners “ that their contract for grading Olive street was void for their failure to perform said work.” At the same time a petition was presented to the Council by the petitioners asking an extension of the time for the performance of the work, and this petition was denied. Notwithstanding this, petitioners proceeded with the work, and completed it on the third of February, 1877.

Subsequently, but at what date does not appear, the petitioners asked of the Council the acceptance of the work; but no other action was taken on the petition than the placing of it on file. Afterwards petitioners demanded of the Council payment for the work, and this demand was referred to the City Attorney. The next step in the proceedings, according to the record, was a report made to the Council, May 9, 1878, by the Board of Public Works to the effect that the work had been well done; that it was more than had been anticipated, and that the Board thought the Council erred ” in its refusal to extend the time for its completion; that although, in the opinion of the Board, the city was not legally liable, they thought it under the moral obligation to assist the petitioners to obtain pay for the work, and therefore recommended that the assessment be made in accordance with the provisions of the charter in force at the time the work was performed, if the petitioners would agree to hold the city harmless. A motion to carry out this recommendation was adopted by the Council, and subsequently the petitioners executed an agreement to hold the city harmless.