Schwiesau v. Mahon

California Supreme Court Dec 20, 1895 No. No. 16024Published

Before: Temple

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Holding. The court held that a street assessment lien is invalid when the underlying contract fails to include or properly reference the required specifications, as strict compliance with statutory requirements is necessary to impose such a lien.

Issues

Whether a street assessment lien is valid when the written contract fails to include or reference the required specifications for the work.
Whether the failure to attach specifications to a contract for public work renders the contract unenforceable for the purpose of establishing a lien.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The court held that there was no valid contract for the work, and therefore no lien.”

“The liability depends upon a strict compliance with the law, and not upon the equities of the claimant.”

“The statute requires the contract to be in Writing and signed by the contractor.”

Synopsis

Street Assessment—Lien in Invitum—Strict Compliance with Statute—Equities of Claimant.—In order to fix upon property the lien of a street assessment, every requirement of the statute that could be of benefit to the person to be charged with the lien must be strictly complied with; nor can the equities of the claimant be regarded where there is no such compliance.

Id.—Necessity of Written Contract—Absence of Specifications—Void Contract—No Lien for Proper Work.—The statute requires the contract to be in writing, and signed by the contractor; and, where the contract signed does not define the work to be done, nor refer to any specifications in which it is described, there is no valid contract for the work, and therefore no valid lien of a street assessment, although the work may have been done strictly in accordance with the specifications referred to in the advertisement for bids.

Id.—Insufficiency of Bond—Obligation of Sureties—Correction of Contract upon Appeal.—The bond required of the contractor, to be valid, must be conditioned that the contractor will perform the contract entered into by him, and a defect in the contract as to specifications for the work cannot be corrected by an appeal to the board, which cannot provide sureties for its performance, without which there can be no binding contract; and the original sureties are entitled to stand upon the letter of the original contract, and cannot be bound by any correction thereof upon appeal.

Temple, J. By this action it was sought to foreclose the lien of a street assessment. The court held that there was no valid contract for the work, and therefore no lien.

Defendant put in evidence, at the trial, the contract entered into by the plaintiff. By it plaintiff agreed to do all the work necessary to be done to grade Fifth street in the town of San Rafael, and to construct curbing and rock gutterways along both sides of said Fifth street, between certain points named, “All in strict accordance with the specifications hereto annexed and made a part of this contract, and also that he will furnish, at his own cost and expense, all necessary material required for the execution and completion of said work, and in full accordance with said specifications and to the satisfaction of the said superintendent of streets.”

No specifications were attached to the contract, and it was shown by the evidence of the street superintendent that none had ever been attached thereto.

[546]Plaintiff contends that, inasmuch as bids were received to do the work in accordance with the specifications, which, in the advertisement for bids, were specifically referred to, and as the superintendent of ■streets was not authorized to reduce to writing any other contract, than that made by the board, there could be no mistake as to the specifications, and, as the work ■has been done strictly in accordance with them, the objection cannot now be made.

If the contract were one entered into by the taxpayer individually, there would be no answer to, this position. But this is a proceeding to fix upon property a lien, in invitum, and it has been held that in such case every requirement that could be of benefit to the person to be charged must be complied with.

It cannot be said that there is no possible benefit to the owner in having a written contract signed by the contractor. In this case the contractor was required to give a bond with sureties for the faithful performance of the contract. This bond, to be valid, must be conditioned that the contractor will perform the contract entered into by him. Sureties are bound only and may insist upon the very letter of their contract. In this case would there be any contract by which they would be bound? The statute requires the contract to be in Writing and signed by the contractor. The contract signed does not define the work to be done, nor does it refer to any specifications in which it is described. It not only does not refer to specifications filed, but negatives such reference by express reference to those attached.

Schwiesau v. Mahon

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