Paoli v. L. C. Smith Co.

NOURSE, P. J. This is a useless appeal from a purely factual decision for plaintiff on conflicting evidence.

The action was on an agreement in writing to pay $1,500. The agreement was received in evidence and reads:

“Re: Installation of Street Improvements Belvue Heights Subd’n. Belmont

“With further reference to the above matter and particularly in connection with certain proposed modifications of the original procedure: In consideration thereof, we undertake to make you an allowance of $1,000.00 from the original bid, making the amended total $46,486.90 instead of the amount heretofore.

, 1 [Furthermore, we are prepared to give you an additional rebate of $500.00, if we are permitted to substitute a suitable 5 inch rock base and 1% inches of asphaltic concrete, in lieu [842]or in place of the 6 inch rock base and 1 inch armor coat originally specified.

“Your further consideration of this matter will be greatly appreciated.

Yours truly

L. C. Smith

L. C. Smith—President

Approved and Accepted This Day of November, 1950

Julio Paoli”

Plaintiff wished to subdivide lands owned by him in the city of Belmont under the name Belview Heights. The city required certain improvements for streets, sewers, et cetera, and instituted improvement proceedings under the Improvement Act of 1911, Streets and Highways Code, section 5000 et seq. Accordingly the city of Belmont called for bids for the planned improvements in October, 1950. The costs would become an encumbrance on plaintiff’s property. Defendant was the lowest bidder with a bid of approximately $47,500 ; there would be moreover more than $8,000 incidental expenses. Plaintiff objected to the high total costs. After the hearing by the city council had been adjourned, there was a conference between plaintiff and L. C. Smith, the director of defendant, to find out whether the costs could be reduced and to avoid frustration of the improvement proceedings by plaintiff’s protest under section 5220 et seq., Streets and Highways Code. The stated letter was the result of said conference. It was signed by plaintiff in the office of the city attorney of Belmont and his protest was thereupon withdrawn. Defendant’s bid was accepted and it performed the work. The change in specifications to which the second paragraph of the letter relates was permitted. Another change in requirements, this time an increase, was caused by a request of the state in relation to an encroachment on the state highway (El Camino Beal). The work was completed at the end or December, 1951, and defendant fully paid, the total payment for the improvements being $47,941.35. As to the above there is hardly any dispute. Plaintiff’s testimony is corroborated by that of the city attorney of Belmont. It is conceded that the amount of $500 mentioned in the second paragraph of the letter became due.