Capeon v. Hitchcock

Vakclief, C. — Action to enforce the lien of an assessment on the lot of defendants in the city of San Diego, for street work, alleged to have been done by plaintiff under a contract awarded to him by the city council and executed on the part of the city by the superintendent of streets. The complaint is in the usual form.

The answer, after denying the alleged contract, averred, and the court found: “ That, at all the times mentioned in plaintiff’s complaint, the city of San Diego was a municipal corporation of the fourth class, organized and existing under an act of the legislature of the state of California, entitled, ‘An act to provide for the organization, incorporation and government of municipal corporations,’ approved March 13, 1883; that at all times mentioned in the plaintiff’s complaint herein, said plaintiff, John (x. Capron, was a school trustee of the said city of San Diego, duly elected, qualified, and acting as such school trustee for the third ward of the city of San Diego.”

The court also found, generally, that all the allegations of the complaint were true, and gave judgment for plaintiff. The defendants have appealed from the judgment, and also from an order denying their motion for a new- trial.

On the appeal from the judgment, appellants contend that on the findings of fact the judgment should have been in their favor, for the reason that the alleged contract was prohibited and made void by section 628 of the said act of the legislature of March 13,1883, which provides that no officer of a city of the fourth class, organized under said act, “shall be interested in any contract to which the city is a party, and any contract contrary to the provisions hereof shall be void.” Substantially the same point is made on the appeal from the order denying a new trial, by exception to the finding of the alleged contract, the evidence, [430]without conflict, showing that the plaintiff was an officer of the city, namely, school trustee, at all the times mentioned in the complaint, as specially found by the court. But since this special finding of the official character of the plaintiff, so far as it affects the validity of the contract, is a controlling qualification of the general finding “ that each and all the allegations of the complaint are true,” the ground upon which the point is made sufficiently appears upon the judgment-roll.

I think the point is well taken on the appeal from the judgment, and should be sustained.