Smith v. Luning Co.

Harrison, J. The plaintiff and the defendant entered into an agreement June 7, 1893, by which the plaintiff was to construct an ironstone pipe sewer in front of the property of the defendant on Leavenworth street, between Greenwich and Lombard streets, in San Francisco, to the satisfaction of the superintendent of streets and highways of said city and county. There was at this time an ordinance in force in the city and [310]county, making it a misdemeanor, punishable with fine or imprisonment, for any person to break up or disturb any public street without the permission of the superintendent of streets and highways, and providing that that officer should not issue a permit for the doing of any street work under a private contract, unless said contract provided for doing the work on the entire length of the block, and was signed by the owners of three-fourths of the frontage of the property in said block. The defendant was the owner of one-fourth of the frontage on Leavenworth street between Greenwich and Lombard, and prior to this date, viz., April 11,1893, one Daniel O’Connor had entered into a contract with the owners of the other three-fourths of the frontage on said street for building a sewer therein, and had obtained a permit from the superintendent of streets for constructing said sewer, which he afterward completed, and on the 10th of August received from the superindendent of streets á certificate of his acceptance of said work. The plaintiff never received a permit from the superintendent of streets to do any work on this portion of Leavenworth street, and did not do any of the work in constructing the sewer. The plaintiff brought the present action to foreclose a lien upon the land of the defendant by virtue of its agreement with him for the construction of the sewer. Judgment was rendered in his favor, and the defendant has appealed.

As the construction of the sewer in front of the defendant’s lot, without obtaining a permit therefor from the superintendent of streets, would have been in violation of the city ordinance, and have constituted a misdemeanor, any agreement between the plaintiff and defendant to construct it without obtaining such permit would have been unlawful, and could not form the basis of a civil action. Parties to an agreement are, however, deemed to have intended a lawful, rather than an unlawful, act, and their agreement is to be construed, if possible, as intending something for which they had the power to contract. As the obtaining a permit from the [311]