N. P. Perine Contracting & Paving Co. v. Quackenbush

California Supreme Court Dec 4, 1894 No. No. 15549Published

Before: Fitzgerald, Fleet, Haynes, McFarland, Searls, Temple

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Holding. The court held that a complaint alleging that street assessment bids were opened and awarded prior to the deadline for submission is fatally defective, rendering the proceedings void. Additionally, the court held that a judgment for a street assessment lien cannot specify payment in gold coin when the defendant is bound only by statute rather than private contract.

Issues

Whether a complaint alleging that bids were opened and awarded before the deadline for submission states a valid cause of action.
Whether a street assessment contract is invalidated by a requirement that work be paid for in gold coin.
Whether a judgment for a street assessment lien may specify payment in gold coin.

Disposition. reversed

Quotations verified verbatim against the opinion

“The allegation of the time at which they were opened, canvassed, and declared was material; nor is it denied that if the proposals were in fact canvassed and declared on the 15th, and the contract based upon such action, that the proceeding was void.”

“It is clearly a liability which may be discharged by payment in any kind of money which is by law a legal tender for the payment of debts”

Synopsis

Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion.

As the proposals for the doing of the work required that the material to be used should be bituminous rock, and there was a patent for the only available method of using such rock, it prevented the owners of the three-fourths of the frontage of the lands to be assessed from contracting to do the work themselves under the statute, and therefore the assessment is invalid. (Stats. 1889, p. 162; Nicolson Pan. Co. v. Painter, 85 Cal. 699.)

The language of the specification that “ the bituminous rock shall be prepared for use by either steaming, hot air, or other process,” does not, on its face, call for the use of a patent process. Therefore, even if it appeared that the plaintiff actually used a patented process, that fact would not avoid the assessment, nor constitute a defense. (Dunne v. Altschul, 57 Cal. 472.) Under the present statute the board is authorized to specify a patented pavement. (Act of 1889, sec. 34. See record in McDonald v. Dodge, 97 Cal. 112.) And, independently of the statute, the weight of authority is that municipalities can adopt a patented article or process, even though required by their charter to let the work to the lowest bidder.' (Hobart v. Detroit, 17 Mich. 246; 97 Am. Dec. 185; Attorney General v. Detroit, 26 Mich. 271; Motz v. Detroit, 18 Mich. 515; Detroit v. Circuit Judge, 79 Mich. 389; In re Dugro, 50 N. Y. 513; Silsby Mfg. Co. v. Allentown, 153 Pa. St. 319; Kilning-ton v. City of Superior, 83 Wis. 222.) Moreover, the proof showed that the owners of the patent rights were willing to sell licenses to any person to use such patented methods for a reasonable sum. This admits of all the competition which the statute contemplates, and the contract is, therefore, valid. (Hobart v. Detroit, 17 Mich. 246; 97 Am. Dec. 185; Kilvington v. City of Superior, 83 Wis. 222.) The fact that the contract provided for payment in gold coin did not render it void. (See Beaudry v. Valdez, 32 Cal. 279; Poett v. Stearns, 31 Cal. 78; Williams v. Savings & Loan Soc., 97 Cal. 123.)

Haynes, C. The plaintiff, a corporation, brought this action to foreclose a street assessment lien upon defendant’s lot. Defendant interposed a general demurrer to the complaint, wThich was overruled without [686]argument. An answer was afterwards filed, a trial liad, and findings and judgment were for the plaintiff, and this appeal is from the judgment, and also from an order denying defendant’s motion for a new trial.

The only point now made upon the demurrer is that the complaint shows that bids were to be received until 4 p. m. of January 16th, and that the bids were opened, examined, and declared by the board on the 15th, and in pursuance thereof awarded the contract to the plaintiff.

Respondent contends that the date of opening the bids stated in the complaint is a clerical error, and that this is apparent from the allegation in paragraph 7, “ that on the sixteenth day of January, 1892, and prior to 4 o’clock p. m., various sealed proposals to do said work were delivered to the clerk of said board of supervisors. That the plaintiff herein signed and handed in to said clerk one of the said sealed proposals,” etc.

There is an inconsistency in these dates, and, if it could be said that these inconsistencies created an uncertainty merely, we could have little difficulty in reaching a conclusion. But the date at which plaintiff’s proposal was filed was immaterial, provided, only, that it was before 4 p. m. of the 16th. There is no doubt or uncertainty that bidders had until that time to hand in their proposals, nor can there be any doubt that the board could not legally act upon the proposals until the time limited for receiving them had passed. The allegation of the time at which they were opened, canvassed, and declared was material; nor is it denied that if the proposals were in fact canvassed and declared on the 15th, and the contract based upon such action, that the proceeding was void. The demurrer was therefore well taken, and should have been sustained.

It is contended, however, that the defendant put in evidence upon the trial the proposal of the plaintiff, and that said proposal bore date of January 16th. But no evidence was offered or received inconsistent with the averment that the proposals were opened on the ]5th? [687]

N. P. Perine Contracting & Paving Co. v. Quackenbush

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