McVerry v. Boyd

California Supreme Court May 28, 1891 No. No. 12916Published

Before: Garoutte

AI Brief

AI-generated · verify before citing

Holding. The court held that a street assessment lien is valid when the board of supervisors grants an extension of time for contract completion within the contract's life, even if the superintendent's ministerial act of recording the extension occurs later. Furthermore, property owners cannot challenge the contractor's authority or the assessment's apportionment in a foreclosure action if they failed to appeal to the board of supervisors.

Issues

Whether a street contract extension is valid if the board of supervisors grants it within the contract term but the superintendent records it later.
Whether a property owner may challenge the contractor's authority to enter into the contract in a foreclosure action.
Whether the board of supervisors has authority to order the regrading of a street previously graded.
Whether an assessment is void for failing to charge a railroad company for street improvements.

Disposition. affirmed

Synopsis

Street Improvement — Performance of Contract — Extension of Time. — Under the act of 1872 (Stats. 1872, p. 807), an extension of time for the performance of a contract for a street improvement in the city and county of San Francisco must he granted within the life of the contract, in order to be valid.

Id. — Indorsement of Extension — Record — Neglect of Street Superintendent. — The failure of the superintendent of streets to indorse npon the original contract an extension of time properly granted to the contractors by the hoard of supervisors, or to cause the resolution of extension to be recorded until after the period fixed by the contract, does not render the extension ineffectual.

Id. — Contract — Power of Attorney — Defense to Assessment. — After a contract for street improvement has been completed and the work accepted, a property owner cannot, in an action to foreclose the assessment lien, question the sufficiency of a power of attorney given by one person to another to enter into the contract with the superintendent of streets.

Id. — Regrading of Street — Power of Supervisors. — Whenever the condition of a street is such as, in the estimation of the board of supervisors, it is proper that the burden of regrading the same should be borne by the entire block, the board has authority to order the improvement, even though a similar expense has previously been borne by the property owners for the original grading.

Id. — Street-railroad — Apportionment of Expense — Burden of Proof. — The mere fact that a portion of the street improved was occupied by a railroad company, whose duty it was to improve, or bear the expense of improving, a part of the street, does not impair the prima facie correctness of the assessment, and the burden is on a property owner who contests the validity of the assessment to show, in order to invalidate the assessment, that the expense of improving the portion of the street occupied by the railroad was included in the assessment against him.

Id.—Failure to Appeal — Validity of Assessment — Estoppel.—The failure of a property owner, who is dissatisfied with a street assessment, to appeal to the board of supervisors, estops him from complaining of any matters which were the subject of appeal.

Garoutte, J. — This is an action to foreclose the lien of a street assessment upon a lot on Clay Street, in the city of San Francisco.

The appeal is by defendant Boyd from the judgment and order denying his motion for a new trial.

Findings of fact were waived.

April 3d was the day upon which the contract of plaintiff for the completion of the work expired, and upon that day the board of supervisors passed the following'resolution: “Resolved that the superintendent of public streets, highways, and squares be and is hereby directed to grant the following extensions of time on [306]street contracts, viz., to property owners or assigns, thirty days for regrading Clay Street from Jones to Leavenworth.”

The street superintendent did not, in pursuance of the foregoing resolution, issue a certificate of the thirty-day extension until April 10th.

The extension must be granted within the life of the contract, in order to be valid. (Raisch v. San Francisco, 80 Cal. 1; Beveridge v. Livingstone, 54 Cal. 54.)

1. It is contended by the appellant that the extension to the contractor is granted by the street superintendent, and that the resolution of the board of supervisors is merely permissive or directory of such action, and that therefore in this case the contract was dead upon the tenth day of April, the date upon which the superintendent acted upon the resolution of the board. But upon a careful consideration of section 7 of the act of 1871-72 it would seem that such contention is untenable.

The law vests in the board of supervisors, acting judicially, the right to determine when additional time shall be granted to the contractor; and -whatever the statute requires the street superintendent to do under an order of the board directing an extension, he does as a ministerial act, and the statute is merely directory in that respect.

Section 6 of the act (Stats. 1872, p. 807) provides that, before the awarding of any contract by the board of supervisors, the clerk shall cause to be posted a notice inviting sealed proposals, “ which notice shall specify the time within which said work is to be performed ” (and also provides that, prior to the publication of that notice, the superintendent of streets shall furnish specifications); “ and the time within which the contract must be completed.” These acts of the superintendent are not conclusive upon the board of supervisors in the matter of awarding the contract, but are merely advi

McVerry v. Boyd

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief