Palmer v. Burnham

SEARLS, C. Action to recover by C. T. H. Palmer, as assignee of C. A. Warren, contractor, upon a street assessment, and to enforce a lien therefor for grading Broadway, a public street in the city of Oakland. A demurrer was interposed by the defendants to the amended complaint of the plaintiff, which was sustained by the court, and, plaintiff having failed and declined to amend, final judgment went for the defendants. Plaintiff appeals from the judgment, and the cause comes up on the judgment-roll.

The only questions presented relate to the sufficiency of the amended complaint. The resolution of intention to grade “to the official subgrade for macadamizing,” etc., Broadway, from the northern line of Fourteenth street to the northern boundary line of the city of Oakland, was adopted March 18, 1889, and such proceedings were thereafter had that the work was completed prior to June 24, 1890. The improvement was therefore performed under “An act to provide for work upon streets, lanes,” etc., approved March 18, 1885 (Stats. 1885, p. 147), and the act amendatory thereof, approved March 14, 1889 (Stats. 1889, p. 157). The contract under which the grading was performed was dated August 2,, 1889, and the pleader, after averring that the superintendent of streets entered into the same with C. A. Warren, the contractor, continues and avers that he (the superintendent) “fixed the time for beginning said work to be within fifteen days from the date thereof, and the time for completing said work to be within one hundred and eighty days thereafter.” It is also alleged that the work was commenced August 16, 1889, and “under direction of said council by its resolutions Nos. 14,667, 14,853, and 15,062, said superintendent of streets enlarged and extended the time of completing said work, viz., February 4, A. D. 1890, by ninety days, and April 22, 1890, by forty days, and June 17, 1890, by thirty days.” It is further averred that the work was completed according to the “terms of the contract with its said extensions of time.”

Section 6 of the act of 1885 (Stats. 1885, p. 151) confers power upon the superintendent of streets to enter into written [585]contracts of the character herein involved, and provides that “he shall fix the time for the commencement, which shall not be more than fifteen days from the date of the contract, and for the completion of the work under all contracts entered into by him, .... and he may extend the time so fixed from time to time," under direction of the city council.” It has been repeatedly held by this court that all extensions of time for the completion of contracts for street work must be made before the period fixed therein for its completion, or within the periods to which it has been previously extended: Beveridge v. Livingstone, 54 Cal. 56, 57; Fanning v. Schammel, 68 Cal. 429, 9 Pac. 427; Dougherty v. Coffin, 69 Cal. 454, 10 Pac. 672; Raisch v. San Francisco, 80 Cal. 1, 22 Pac. 22; McVerry v. Boyd, 89 Cal. 304, 26 Pac. 885; Brock v. Luning, 89 Cal. 316, 26 Pac. 972; Brady v. Burke, 90 Cal. 1, 27 Pac. 52; Heft v. Payne, 97 Cal. 108, 31 Pac. 844. If the one hundred and eighty days fixed in the contract are to be reckoned from August 2, 1889, the date of the contract, then the time expired January 29, 1890; and, as it could not be thereafter extended, the attempt to do so on the 4th of February, 1890, was a vain act under the foregoing authorities, and could not galvanize the contract into new life.