Brown v. Jenks

Citations

• 98 Cal. 10
• 32 P. 701
• 1893 Cal. LEXIS 851

Syllabus

<p>APPEAL—Consent of Respondents to Reversal of Judgment — Rights of Appellant—Decision of Errors Assigned.—Where the appellant contends that the trial court improperly overruled his demurrer to the complaint, and a improperly struck out a defense from his answer, the consent of the respondent to a reversal of the judgment, upon the ground that the court erred in striking out the defense, cannot deprive the appellant of his right to have the correctness of the ruling on the demurrer determined.</p> <p>Street Improvement—Bond to Keep Street in Repair—Invalid Assessment —Authority of City Council—Expense of Repair—Guaranty.—A requirement in a contract for street improvement under the provisions of the act of March, 1885 (Stats. 1885, p. 147), that the contractor shall give a bond with sureties conditioned “for keeping the streets so improved in thorough repair for the term of five years from the completion of the contract,” vitiates an assessment for the work done under the contract. The act contains no grant of authority to the city council for keeping a street in repair, and needed repairs must be made only at the expense of the owners of the frontage where the repairs are required, at the time of such repairs; and the expense of keeping the street in repair cannot be assessed in advance against all the owners of frontage along the line; nor can the city council require them to pay for the expense of a guaranty that the work would be so well done as not to require repairs for five years.</p>