McGee v. City of San Jose

Morrison, C. J. — This is an action on a contract for street work done in the city of San Jose under a contract between the plaintiff ánd the authorized agent of the city. The contract price for the work was the sum of three thousand four hundred dollars, '' whereof seventy per cent should be paid in gold and thirty per cent in silver coin, in the manner prescribed by law, and in accordance with an act of the legislature of the state of California, entitled 'An act to incorporate the city of San Jose/ approved March 17, 1874, by a warrant drawn upon the general fund in the treasury of said city by the mayor and common council thereof at the next general meeting of said mayor and common council after the acceptance of said work, to be paid by the treasurer of said city out of said general fund, in the proportions of gold and silver coin expressed in said agreement.” The contract was entered into on the tenth day of December, 1877. The case was tried by the court without a jury, and the following findings were made and filed by the judge: —

“ 1. That on the tenth day of December, 1877, the contract, exhibit A, attached to the complaint in this action, was entered into between said plaintiff and the defendant through and by the then acting street commissioner of said city.

[93]“2. That said plaintiff performed the work in said contract provided for, and completed the same on or about the-day of July, 1878.

“ 3. That said work and improvement was accepted by the proper authorities after its completion, and on or about the-day of July, 1878.

“4. That the defendant paid to plaintiff on account of said contract, in warrants on its treasurer, drawn in his favor, and which were duly paid, the following amounts at the respective dates of February 25, 1878, $300; April 1, 1878, $400; August 12, 1878, $813.05,— making the aggregate payments to him previously of $1,513.05.

“ 5. That between the sixth day of July, 1878, and the sixth day of August, 1878, divers claims and statements were presented to the city clerk and filed with the mayor and common council of said city by laborers, subcontractors and material-men, who had performed labor and provided materials for said plaintiff in the performance of said contract, and which were used therein, and which said claims were each indorsed and signed by said plaintiff, and by writing indorsed on the same admitted by him to be correct, and which said claims amounted in the aggregate to $1,423.75, and which were duly paid by defendant.