Pacific Manufacturing Co. v. Leavy

STURTEVANT, J. This is an application for a writ of mandate against the respondent Leonard S. Leavy, as Controller of the City and County of San Francisco, to compel him to draw his warrant in favor of the petitioner in the sum of $3,375. The action presents no question of fact but solely a question of law. On the 25th day of March, 1935, MacDonald & Kahn Co., Ltd., was awarded a contract to construct the Marina Junior High School. The contract covered every item, including the furnishing of mill work and installing the same. It also provided that on the 10th day of each month during the performance of the contract a sum equal to 75 per cent of the contract price for materials and work done during the preceding calendar month should be paid in accordance with an estimate to be made by the architect. On May 2, 1935, MacDonald & Kahn Co., Ltd., entered into a contract with the petitioner under which the petitioner was required to furnish the mill work so required by the general contract to be furnished and installed by MacDonald & Kahn Co., Ltd. Petitioner’s contract contained nothing to the contrary and the monthly claims for compensation were presented by MacDonald & Kahn Co., Ltd., and it disbursed to its subcontractors their proportion of each monthly claim. The claim so presented for the month of December included among other items $3,375 for [642]mill work furnished by petitioner to MacDonald & Kahn Co., Ltd., and by the latter installed in the building. The fiscal officers of the city and county of San Francisco allowed and ordered paid the entire claim presented by MacDonald & Kahn Co., Ltd., except the said sum of $3,375, the amount representing the claim of this petitioner. It is admitted that the funds were available and in the treasury, but nevertheless the respondent refused to draw his warrant. The petitioner alleges and the respondent admits that the latter’s refusal was based on the contention of the latter that this- petitioner did not comply with the provisions of section 98 of the Freeholders’ Charter as the same was worded on May 17, 1935, and that petitioner did not comply with Ordinance No. 9.0923.

The contract awarded to MacDonald & Kahn Co., Ltd., by reference adopted the plans and specifications, and in particular specifications as to the mill work to be installed in the building. However, no claim is made that any of the mill work furnished by the petitioner was not in compliance with the plans and specifications. Except to deliver the mill work prepared by it, the petitioner, under the terms of its contract, was not called upon to do or perform any work whatever at the site of the Marina Junior High School building.