Buckman v. Ferguson

Harrison, J. Action to foreclose a street assessment in San Francisco.

The validity of the assessment is contested upon the ground that the contract for doing the work was invalid by reason of the failure on the part of the superintendent of streets to fix the time for the commencement and the completion of the work. Judgment was rendered in favor of the defendant, from which and from an order denying his motion for a new trial the plaintiff has appealed.

The contract in question was awarded to W. H. Maxwell, and notice of the award having been posted and published December 11, 1890, the contract was entered into by Maxwell and Thomas Ashworth, as superintendent of .streets, December 23, 1890. The body of the contract was written, dated, and signed on one page» which was numbered “ page one,” and provided, among other things, that Maxwell would do and perform all the work required to be performed, under the direction and to the satisfaction of said superintendent, “ according to the specifications hereunto annexed and made part of this contract.” Upon the upper part of another sheet of paper which was attached to the contract, marked “ page 2,” was pasted a copy of the specifications which had been included with the notice inviting proposals for doing the work; and beneath this copy of the specifications were the following words: “ The work to be commenced fourteen (14) days and completed within [35]one hundred and twenty (120) days from the date of the contract.” These words, except those in italics, were printed upon the page with blank spaces in which to insert the respective periods of time, and the words in italics were written therein. At the bottom of this page, several lines below any other writing or printing, is the signature “ James Gilleran, Superintendent of Public Streets, Highways, and Squares.” Ashworth’s term of office as superintendent of streets expired January 4, 1891, and Gilleran succeeded him and qualified as such superintendent January 5,1891. The court finds “ that said contract was signed and executed by said Ash-worth, as such superintendent, and by said Maxwell on the 23d day of December, 1890 and, also, “ that on the 5th day of January, 1891, said James Gilleran, as such superintendent, did in form fix the time for the commencement of the work to be performed on said contract at fourteen days from and after the date of said contract, and for the completion thereof at one hundred and twenty days from the date of said contract, by indorsing upon said contract the words and figures following, to wit: 1 The work to be commenced within fourteen and completed within one hundred and twenty days from the date of the contract.’ ”