Bernstein v. Downs

McFarland, J. This action was brought to recover four hundred and thirty-two dollars and twenty-five [202]cents for work and material furnished by plaintiff’s assignors in making improvements on the street and sidewalk in front of defendant’s lot. This sum of money was the amount originally fixed as a street assessment; but the assessment, on account of a certain irregularity became Void, and the action is founded upon defendant’s promise to pay the amount so assessed. Judgment went for plaintiff, and defendant appeals.

Appellant’s main contention for a reversal is that the complaint does not state facts sufficient to constitute a cause. This contention cannot be maintained.

The complaint is a lengthy one and has three counts; but the main facts stated are, briefly, these: Appellant owned a lot fronting on Second street, between D and E streets, in the city of San Bernardino; and he and certain other owners of lots on said Second street, between D and E, petitioned the board of trustees of said city to cause certain street work to be done on that part of said street. In response to said petition the trustees duly adopted a resolution of intention to order certain described work to be done on said Second street, from the east line of D street to the east, line of E street; and such proceedings were regularly had that a contract was awarded to respondent’s assignors, Ramish and Marsh, who did the work, and the assessment for work against appellant’s lot was, in the first instance, four hundred and thirty-five dollars and sixty-nine cents, but upon appeal by appellant and others to the board of trustees, on account of some incidental expenses charged to which they objected, the board reduced the total amount somewhat, so that the amount assessed against appellant’s lot was four hundred and thirty-two dollars and twenty-five cents. Appellant and the other said lotowners took another appeal to the board, in which they objected that the work was not well enough done, and not in compliance with the specifications, and also made some technical objections—as, for instance, that the contractors employed men on the basis of ten instead of eight hours as a day’s work. While this appeal was pending before [203]the board of trustees, the appellant and the other appealing lotowners, and the contractors, all went together to the part of said Second street where the work had been done for the purpose of examining it. After the investigation the defendant promised the said contractors that if they would do certain other described work, which consisted of certain alterations of and addition to the work already done, he would waive all defects in the assessment and pay them the full amount of said assessment of four hundred and thirty-two dollars and twenty-five cents. The board dismissed the appeal, but made an order that the contractors make certain additions to the work; and said contractors in consideration of said promise of appellant did do all the work which they had agreed with appellant to do, and also the work ordered by said board to be done. The appellant knew of all these facts and circumstances; knew and saw that the work was being done, and made no objection except as hereinbefore stated. The cause of action was assigned by Ramish and Marsh to respondent. (It is admitted that the assessment could not have been legally enforced on account of some mishap in getting an order extending the time for the completion of the work.)