Stansbury v. White

BELCHER, C. Two actions were commenced by C. V. Stansbury and H. I. Moore, copartners doing business under the firm name of Stansbury & Moore, against the defendants, J. 0. White, E. B. White, his wife, and Delia W. Chase, to foreclose the liens of a street assessment for improvements made on Gallardo street in the city of Los Angeles. The assessment [434]involved, in one of the cases was on the north seventeen feet of lot 21 in the Villa Tract in said city, for forty dollars and forty-nine cents, and that involved in the other case was on the south sixteen feet of lot 22 in the same tract for thirty-eight dollars and twelve cents.

The defendants filed a general demurrer to each complaint, which was overruled, and then answered. The cases were tried together, and judgments were entered awarding the plaintiffs the relief demanded, with costs and attorneys’ fees. From these judgments the defendants have appealed, the appeals being respectively designated as Nos. 416 and 417.

The cases, as shown by the records and briefs filed, are in all respects identically the same, except as to the lots assessed and the amounts of the assessments, and they may therefore be considered together.

After the judgments were rendered and before the appeals were taken Moore died, and, by an order of court, Stansbury, the surviving member of the firm, was substituted as sole plaintiff.

It is alleged in the complaints that on August 28, 1895, tho city council of the city of Los Angeles passed a resolution of intention to have Gallardo street, between certain designated terminals, graded, graveled, and guttered in accordance with specifications No. 5 on file in the offices of the city engineer and city clerk of said city, and to have constructed along each side of the street, between the said terminals, a cement curb and a cement sidewalk, five feet wide, in accordance with the amended specifications No. 12 on file in the offices of said city engineer and clerk.

At the trial it was stipulated that the work was done under said specifications, which were fully set out. Specifications No. 5 contained, among others, the following provisions:

“The contractor shall not use any material in filling the sub-grade that is of a spongy nature, and should the street, or any portion thereof, be found to contain material unsuited for foundation purposes, the contractor shall remove such material at his own expense, and replace it with good earth or gravel. .... An allowance for settling, to be determined by the street superintendent, shall be made when finishing fill.....Tin-