Libbey v. Elsworth

Citations

• 97 Cal. 316
• 32 P. 228
• 1893 Cal. LEXIS 539

Syllabus

<p>¡street Assessment — Delay in Making Contract — Pleading — Cause for Delay. — A complaint in an action upon a street assessment which shows that the contract which is the basis of the assessment was not entered into within fifteen days after the first posting of the notice of the award to the contractor, as required by the act of March 18, 1885 (Stats. 1885, p. 147), but which contains no averment that the delay in entering into the contract was not caused by the neglect, failure, or refusal of the contractor, is fatally defective. ''</p> <p>Id.—Mandatory Statute — Time for Commencement and Completion of Work — Invalid Contract. — The provision of section 6 of the act of March 18, 1885 (Stats. 1885, p. 147), providing that the superintendent of streets shall fix the time for the commencement and completion of the work under all contracts entered into by him, is mandatory, and a contract not in accordance with its terms is invalid.</p> <p>Id.—Pleading — Pacts Showing Valid Contract.—The complaint in an action upon a street assessment must allege facts affirmatively showing that the contract was valid, and must show that the contract for the work done fixed the time for the commencement and completion of the work. It is not sufficient to allege generally that the contract entered into was one by which the contractor agreed to do the work named therein in accordance with specifications, which are not set out, and under the direction and to the satisfaction of the superintendent of streets, but it must affirmatively appear from the statement of the contract, whether it is set out in hcec verba or according to its legal effect, that it contained everything essential to make it a valid contract under the statute.</p>