Dyer v. Brogan

Foote, C. The plaintiff sued to recover judgment on a street assessment.

The only finding of the court below was: “That the board of supervisors of the city and county of San Francisco did not, on the fourteenth day of November, 1876, or at any other time, adopt or pass any resolution ordering the street work mentioned in the complaint to be done, and that said street work, viz., the grading of Vallejo Street from Larkin to Polk Street, was never ordered by said board to be performed, by resolution or otherwise. And as a conclusion of law, I find that defendant, M. Brogan, is entitled to judgment for his costs, and the clerk is hereby ordered to enter judgment accordingly.”

Judgment for the defendant followed in accordance with that finding.

From the former, and the order denying, him a new trial, the plaintiff appealed. ■

The main points urged here by the plaintiff are, that the evidence did not justify the finding, and that parol evidence was improperly admitted to vary the records of the board of supervisors of the city and county of San Francisco.

The principal defense set up by the defendant in his answer was, that said board had never ordered the street work to be done for the cost of which the action against him was being prosecuted.

It appears from the evidence that the record kept by [138]the clerk of that board from 1867 and continuously up to the time of the alleged ordering of the work in controversy was, for convenience, done by posting into a book the printed slips from the Daily Examiner (a newspaper doing the printing by contract under the street law) of tiie resolutions of intention, ordering street work, and notices for bids; that the record in reference to the work in hand was made up in that way.

That the resolution under which this work was alleged to have been ordered to be done had several pieces of other work (as printed in it) erased by drawing blue pencil marks through, “and as to work for grading Vallejo Street from Larkin to Polk Street,” the blue pencil was drawn through also. That the erasures were there prior to the board’s passing the resolution, and that the deputy of Mr. Bussell, the clerk of the board of supervisors, Mr. Forman, placed the word “stet” opposite the words struck out, as a guide to the printer that he should disregard the striking out of said words, but at what time he did so is not distinctly ascertained.