Amestoy v. Elec. Rapid Transit Co.

Citations

• 95 Cal. 311
• 30 P. 550
• 1892 Cal. LEXIS 820

Syllabus

<p>Electric Street-railroad—Void Franchise—Pleading—Promise to Pay for Street Paying — Want of Consideration. — A complaint in an action upon a written obligation for the payment of money, which alleges that the obligation was given by the defendant, an electric street-railroad company, to repay the plaintiff and other property owners for paving the street, in consideration that the plaintiff would not take any steps to prevent the electric company from tearing up the paving and laying its tracks; and which also alleges facts showing that the franchise of the company is void, having been granted by the city council without power, and that the plaintiff and other property owners could and would have prevented the defendant from laying its tracks on the street but for the promise to pay, — shows a want of consideration for the promise, and states no cause of action.</p> <p>Id. — Assignment of Void Franchise — Void Ordinance — Condition that Property Owners be Repaid. —An assignment of a void franchise confers no rights, and a void ordinance granting a franchise to the assignee, on condition that the grantee repay to property owners all sums paid by them for paving, which the assignor had been required to do under a former void ordinance, cannot constitute a consideration for a promise to pay the money to the property owners.</p> <p>Id. — Obstruction of Street — Public Nuisance — Special Damage — Contract against Public Policy. — A track laid and poles erected in the street without authority constitute an illegal obstruction, or public nuisance; and where no fact is averred to show special damage to the plaintiff by the obstruction, an agreement not to prevent it is an agreement not to institute a public prosecution, which is against public policy and void, and cannot constitute a consideration for a promise to pay money for not preventing it.</p> <p>Id.—Taking up of Granite Blocks — Consideration of Promise to Pay for Paving. —The taking up of granite blocks used in p