McDonald v. Mezes

McFarland, J. This is an appeal by defendant from a judgment in favor of plaintiff in an action to recover the amount of a street assessment in San Francisco and from an order denying a new trial.

[494]This litigation has arisen — as much former litigation arose—out of the carelessness of officers and contractors when attempting to follow statutory provisions about street work, or willful efforts to evade some of those provisions. We do not think, however, that in the case at bar any of the points made for reversal are tenable.

It is contended by appellant that the contract for the work is absolutely void because it contains the following clause: “Nor shall the said James Gilleran, said superintendent, nor his sureties or bondsman, be liable or holden.....for any delinquency on his part.” This clause should not have been in the contract; for the superintendent can only he relieved from the “ delinquency of persons and property assessed.” The clause is not authorized by the statute. It proposes to relieve the superintendent from the consequences of his failure to do certain acts necessary to the validity of the assessment, upon which alone the contractor could collect the money due for his work. It proposes to exempt the superintendent from the performance of official duties, and, as between the parties to the contract, is probably void as against public policy. But it did not affect or prejudice the rights of the property owner, and therefore, as to appellant, did not make the contract void. Appellant relies on Brown v. Jenks, 98 Cal. 10; but in that case the unauthorized proposition that the contractor, after the completion of the work, should keep the streets in thorough repair for five years, was included in the proposal for bids; and it was held that, as the bids were made on that basis, they would necessarily be higher than if. the unauthorized proposition had not been in the proposal, and the burdens of the property owner were thus increased. But in the case at bar the unauthorized proposition in the contract relating to the delinquency of the superintendent was not in the proposal and the bids were not influenced by it.

It is contended that the judgment should be reversed because both the assessment and the demand included the cost of work not authorized by the resolution of [495]