Byrne v. Luning Co.

VANCLIEF, C. Action to enforce a street assessment upon a lot of land in the city of San Francisco for the sum [896]of $181.45, in which judgment passed for plaintiff and defendant’s motion for new trial was denied. Defendant appeals from the judgment, and also from the order denying its motion for a new trial.

1. Counsel for appellant contends that the complaint does not state a cause of action, because the specifications for the work furnished by the city engineer and made part of the contract were not set out in haec verba in the complaint. The complaint, however, does not purport to state any part of the contract in haec verba, but only the substance of it, according to its legal effect. The work to be done was described in the resolution of intention passed by the board of supervisors, and in the complaint, as follows: “That a sixteenth-inch stone-pipe sewer, with manhole and cover, be constructed in Jones street, from Vallejo to Green street.” And it is alleged in the complaint that the specifications for this work were furnished at the proper time by the city engineer, and that they were attached to and made a part of the contract; that, by the contract, plaintiff agreed “that he would do and perform all the aforementioned work under the direction and to the satisfaction of the said superintendent of streets, in a good and workmanlike manner, and with the materials required by said specifications, which were also to be to the satisfaction of said superintendent of streets, and were to be furnished by the said party of the first part therein [plaintiff] according to the said contract and specifications.” It is then alleged “that plaintiff duly performed all the terms and conditions of said contract therein contained to be performed on the part of said plaintiff, in every respect, within the time fixed in said contract, and according to the terms of said contract and specifications, under the direction and to the satisfaction of said superintendent, and with the materials required by him, and called for by said specifications; and the said work was duly approved and accepted by said superintendent.” The complaint is in the usual verbose form which seems to have been generally adopted by the profession, specifically detailing all proceedings of the board of supervisors and other municipal officers relating to the street work in question; but the foregoing extracts contain all that relates to the specifications attached to the contract, and all that is necessary to illustrate the alleged ground of demurrer. [897]