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(4 Cal. App. 245)

forms to be prepared by the board and furFLINN et al. v. STRAUSS et al.

nished gratuitously upon application, with a

form for the affidavit hereinafter provided for (Court of Appeal, First District, California. Aug. 15, 1906.)

printed thereon. Each bid shall have thereon

the affidavit of the bidder that such bid is 1. MUNICIPAL CORPORATIONS - PUBLIC IMPROVEMENTS-CONTRACTS-FORM OF BIDS

genuine and not collusive or sham; that he AFFIDAVITS – SUFFICIENCY -- SEVERAL BID- has not colluded, conspired, connived or DERS.

agreed, directly or indirectly, with any other Charter of San Francisco, art. 6, c. 1, 8

bidder or person to put in a sham bid, or that 16 (St. 1899, p. 289, c. 2), provides that every bid on a public improvement shall have thereon

such other person shall refrain from bidding; the "affidavit of the bidder" that the bid is not and has not in any manner sought by collucollusive or sham, etc. Hold, that the affidavit sion to secure any advantage against the city of one of two persons uniting to make the bid does not satisfy the requirement.

and county, or any person interested in said 2. SAME-SPECIFIC CASE.

improvement for himself or any other person. An affidavit attached to a bid by two per

All bids shall be clearly and distinctly writsons contained the purported signature of but | ten without any erasure or interlineation, and one of them, nor was there a showing, either in if any bid shall have an erasure or interlineathe instrument or by extrinsic evidence, of the official character of the person before whom it

tion it shall not be received or considered by purported to have been signed anci sworn. The

the board. Any contract made in violation of instrument was undated, and the name of the any of the foregoing provisions, and in case purported signer did not appear as afliant in the body thereof. Held not a compliance with

of improvements of streets, any assessment the statute.

for the work done under such contract, shall 3. SAME - SPECIAL ASSESSMENTS — ENFORCE

be absolutely void." MENT-VALIDITY OF ASSESSMENT-PRESUMP- The complaint herein is in the ordinary TION-CONCLUSIVENESS.

form, and alleges among other matters that In an action to enforce the lien of a street assessment, the introduction in evidence of the

the plaintiffs herein delivered to the board of warrant, assessment, and diagram, together public works their proposal to do the work with an affidavit of demand and nonpayment, | for which it had invited sealed proposals, and makes merely a prima facie case, subject to be

that their said proposal had thereon the assiovercome by evidence of defects in the prior proceedings.

davit of each of the plaintiffs setting forth Ed. Note.--For cases in point, see vol. 36,

the matters required by the above provisions Cent. Dig. Municipal Corporations, $ 1282.] of the charter. Upon an issue thereon the 4. SAME -- REBUTTING EVIDENCE-SUFFICIEN

court found that the alleged proposal "did not CY. .

have therewith or thereon the affidavit as alIn an action to enforce the lien of a street

leged, or any proper affidavit as required by assessment, the proposal of plaintiffs, with a

law." lefective affidavit of good faith indorsed thereon, was produced from the records of the board The bill of exceptions sets forth at length of public works, and a deputy of that office tes- the alleged proposal of the plaintiffs for doing tified that the indorsed affidavit was the one

the work, together with the following, pursubmitted by plaintiffs, and on which their contract was let and based. IIeld sufficient to over

porting to have been printed thereon, viz.: come the prima facie case as to the validity of the proceedings made by plaintiffs' introduc

Affidavit. tion of the warrant, assessment, and diagram,

“State of California, City and County of and, in the absence of further evidence, to authorize a finding that such affidavit was the only

San Francisco-Ss: -, being first duly one given upon the proposal.

sworn, deposes and says: That he is — Appeal from Superior Court, City and

the party making the foregoing proposal or County of San Francisco; J. C. B. Hebbard,

bid; that this bid is genuine and not collusive

or sham; that said bidder has not colluded, Judge. Action by James J. Flinn and another

conspired, connived or agreed, directly or inagainst Gaston Strauss and others. From a

directly, with any other bidder or person to judgment in favor of defendants, plaintiff's put in a sham bid, or that such other person

shall refrain from bidding; and has not, in appeal. Affirmed.

any manner, sought by collusion to secure D. H. Whittemore, for appellants. E. G.

any advantage against the city and county, Knapp and Chapman & Knapp, for respond

or any person interested in said improvement, ents.

for himself or any other person.

"Jas, J. Flinn. HARRISON, P. J. Action for the foreclos

"Subscribed and sworn to before me this ure of the lien of a street assessment in San

day of Francisco. The plaintiffs have appealed from

"H. J. Smith." a judgment rendered in favor of the defendants, and have presented the appeal upon Although this instrument purports to have the judgment roll, including a bill of excep- the signature of "Jas. J. Flinn," his name is tions.

not set forth in the body of the instrument as The charter of San Francisco (article 6, c. the affiant thereof, and the instrument itself 1, $ 16, St. 1899, p. 289, c. 2) provides that is without date, and is not authenticated as all proposals for public work, including street being his affidavit by any official signature or improvements, “shall be made upon printed seal. The official character of "H. J. Smith”

190

is not shown, either in the body of the affidavit, or, by having any official description written after his signature, and it does not appear on the face of the instrument that he was an officer authorized to take an affidavit, nor was there any evidence given at the trial of the cause that he had such authority. The proposal of the plaintiffs to do the work purports to have been made by two persons, "Flinn and Treacy," and the complaint alleges that they were partners and made the proposal, and that it had thereon the affidavit of each of them; but the statement in the purported affidavit of Flinn "that he is the party making the foregoing proposal” is at variance therewith. The provision in the charter requiring "the affidavit of the bidder" is not satisfied by the affidavit of one of several bidders. The purpose of the provision is to prevent collusion and fraud, and to sift the conscience of the bidder, or of all of the bidders if there be more than one; but an affidavit of one of several bidders might be made in good faith notwithstanding a collusion on the part of one or more of his associates.

The above finding of the court was fully sustained by the evidence. Although by the introduction of the warrant, assessment, and diagram in evidence, with an affidavit of demand and nonpayment, the plaintiffs threw upon the defendants the burden of showing any defect in the proceedings prior thereto (Williams v. Bergin, 129 Cal. 461, 62 Pac. 59; Belser v. Allman, 134 Cal. 399, 66 Pac. 492), yet these documents are only prima facie evidence of the plaintiffs' right of recovery, and are subject to be overcome by any affirmative evidence of such defect. At the trial herein the contract of the plaintiffs, together with their proposal and the aforesaid purported affidavit, were produced from the records of the board of public works, and a deputy from that office testified that the purported affidavit indorsed upon the proposal is the paper that was submitted as an affidavit by the plaintiffs at the time the proposal was handed in, and that the contract with them was let and executed on that proposal. This evidence was sufficient to authorize the court to hold that the prima facie character of the documents introduced by the plaintiffs was overcome thereby, and to throw upon the plaintiffs the burden of showing that there was printed upon their proposal an affidavit sufficient to meet the requirements of the charter. In the absence of any further evidence the court was authorized to find that there was no affidavit of the bidder upon the proposal other than the one purporting to have been made by Flinn which was offered in evidence. By the express terms of the above section of the charter the failure to make the affidavit required by the section rendered the contract, and the assessment for the work done under such contract, absolutely void.

The judgment is affirmed.

(4 Cal. App. 240) PACIFIC PAVING CO. V. DIGGINS et al.

(Civ. 214.) (Court of Appeal, First District, California,

Aug. 15, 1906.) 1. MUNICIPAL CORPORATIONS--ENFORCEMENT

OF ASSESSMENTS FOR IMPROVEMENTS—TRIAL -FINDINGS-CONSTRUCTION.

In an action on a street assessment, the issue of fact on which plaintiff's right to recover depended was whether the board of supervisors had jurisdiction to pass the resolution ordering the performance of the work. Defendants' answer alleged that this resolution was not duly passed, which was deemed controverted by plaintiff, as provided by Code Civ. Proc. $ 462. Held, that a finding that the resolution was "duly passed" was a determination that the board had jurisdiction to pass it. 2. PLEADING--LEGAL CONCLUSIONS.

While an averment that an act has been "duly" performed is ordinarily but a legal conclusion, it will be, nevertheless, sufficient, in the absence of a special demurrer or objection on that ground, to authorize evidence on the issue.

[Ed. Note.--For cases in point, see vol. 39, Cent. Dig. Pleading, $$ 19, 20.] 3. PLEADING-OBJECTIONS-WAIVER.

Where parties proceed to trial without an objection that an averment in the complaint is but a legal conclusion, and introduce evidence on the issue, they are precluded, after a decision thereon, to object that the issue was not before the court for decision ; especially where the party making such averment supplements the same in his answer with an averment of the probative facts on which he relies to support his averment.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, SS 1355-1360.] 4. TRIAL-FINDINGS OF FACT.

In an action on a street assessment, a finding that the board of supervisors passed each and every resolution with reference to the work mentioned in the complaint should be regarded as a finding of fact.

[led. Note. For cases in point, see vol. 46, Cent. Dig. Trial, $ 958.] 5. NEW TRIAL-ERRORS OF LAW-FINDINGS OF FACT.

Where defendant claimed that the court erred in making a particular finding of fact, defendant properly disregarded the probative facts found by the court, and sought to correct the error through a motion for a new trial and a statement of the case, in which the evidence relevant to the issue was set out.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. New Trial, $ 165 12.] 6. SAME-DETERMINATION.

Where, in an action on a street assessment, the court found that the resolution of intention to make the improvement had been duly passed by the board of supervisors, but the evidence set forth in a statement of the case on a motion for a new trial clearly established that the board of supervisors was without any jurisdiction to order the improvement, and that the resolution therefor was not "duly passed," the court properly granted defendant a trial. 7. APPEAL-DISCRETION OF COUR-DISMISSAL OF MOTION FOR NEW TRIAL.

An application to dismiss a motion for a new trial for lack of diligence in prosecuting the same is addressed to the discretion of the court, whose action thereon will be affirmed, unless it affirmatively appears that the court's discretion was abused.

[Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 3861.]

We concur: COOPER, J.; HALL, J.

8. NEW TRIAL-MOTION TO DISMISS-DELAY. in the answer of the defendant to be as A statement of the case was settled and

therein alleged, and held as a conclusion filed May 15, 1903, and on September 16, 1904, plaintiff gave notice of a motion to dismiss de

of law that the plaintiff was entitled to the fendant's motion for a new trial for failure

relief asked by it. to prosecute with diligence. On the hearing the One of the grounds for a new trial specicourt's attention was called to the manner and

fied by the defendant in its notice of intentimes at which, under the rules, the motion could have been made, and to the periods of

tion therefor is the insufficiency of the evitime since the filing of the statement during dence to justify the decision, and in the which the court was in vacation. Held that, statement of the case it is specified as one in the absence of any definite showing that the

of the particulars of such insufficiency that motion could have been presented or heard at some time during the expired period, the mere

whereas, it appeared from the evidence that lapse of time was insufficient to show an abuse by reason of the protest of the property of the trial court's discretion in refusing to owners against the resolution of intention dismiss the motion.

passed November 23, 1896, the board of su[Ed. Note.--For cases in point, see vol. 37, Cent. Dig. New Trial, 88 312, 313.)

pervisors ceased to have any authority to

order the work, and could not order the Appeal from Superior Court, City and

same unless they should, after the expiraCounty of San Franciso; J. C. B. Hebbard,

tion of six months, pass another resolution Judge.

of intention to do so, there was no evidence Action by the Pacific Paving Conipany

that any other resolution of intention had against J. C. Diggins and others. From an

been passed by the board, and that the findorder granting defendants a new trial, plain

ing of the court that the resolution set forth tiff appeals. Affirmed.

in the complaint was "duly" passed was not Booth & Bartnett and W. J. Bartnett, for justified by the evidence. appellant. Knight & Heggerty and Wm. M. The issue of fact upon which the plainMadden, for respondents.

tifl's right of recovery depended was whether

the board of supervisors had jurisdiction to HARRISON, P. J. Action upon a street

pass the resolution ordering the work to be assessment in San Franciso. Judgment was

done. The allegation in the answer that this rendered in favor of the plaintiff against the

resolution was not duly passed, which, under defendant Byron Diggins, and upon the mo

the provisions of section 462 of the Code tion of the said defendant the court granted

of Civil Procedure, was deemed controverted a new trial. The present appeal is from this

by the plaintiff, presented this issue of order.

fact to be determined by the court, and the The complaint is in the ordinary form,

finding of the court that it was "duly" passed except that there is no averment therein that

was a determination that the board had the board of supervisors had passed a resolu

jurisdiction to pass it. While the averment tion of intention to order the improvement for

that an act has been "duly" performed is which the assessment was made. In his an

ordinarily but a legal conclusion, yet, in the swer thereto the defendant, for a separate and

absence of a special demurrer or objection special defense to the action, alleged that the on that ground, it will be held sufficient to resolution ordering the work referred to in the

authorize the court to receive evidence upon complaint was not duly passed by the board the issue; and if the parties proceed to trial of supervisors; that it was passed by the board without such objection, and introduce eviNovember 29, 1897; that more than six dence upon the issue, they will not be permonths prior to said date the board passed

mitted, after a decision thereon, to contend a resolution of intention to order such work, that it was not before the court for such but that within 10 days after the expiration | decision (Minor v. Baldridge, 123 Cal. 187, of the time of the posting and publication of

55 Pac. 783); especially where, as in the the notice thereof the owners of a majority present case, the party making such averof the frontage of the property fronting on ment supplements the same in his answer said proposed work made and delivered to with an averment of the probative facts the clerk of said board a written objec- upon which he relies in support of his avertion and protest thereto, upon which the

ment that the act was not duly performed. clerk indorsed the date of its reception by In such a case the general averment may him; that no further proceedings were had be held to be either the ultimate fact esin relation to the doing of said work until tablished by the probative facts, or as mereNovember 29, 1897, when it passed the afore ly an equivalent for the legal conclusion raissaid resolution ordering the work; and that ed by the law upon the proof of such facts, the board did not, prior thereto or relative and therefore disregarded as surplusage. If to said order, pass a resolution of intention there is any conflict between the ultimate to order said work. Upon the trial of the fact that is found and the probative facts cause the court found that all the allegations which are also found, the former will orof the complaint are true, and that the dinarily control; "and although a finding of board of supervisors did duly pass each and probative facts from which the ultimate fact every resolution mentioned therein. It also conclusively follows is sufficient, in the abu found the aforesaid facts specially set forth sence of a finding of such ultimate fact, yet, when the ultimate (issuable) fact is A motion of this nature is eminently adfound, no finding of probative facts which dressed to the discretion of the court, and, may tend to establish that the ultimate fact unless it shall be made to affirmatively apwas found against the evidence can over- pear that there has been an abuse of discrecome the ultimate fact so found. In such tion, its ruling thereon will be affirmed. In case the only remedy of the party injured addition to the matters to which the attention is to move for a new trial on the evidence. of the court was called, the judge had perSee Perry v. Quackenbush, 105 Cal. 305, 38 sonal knowledge of the extent and manner in Pac. 740, and cases cited.” Sharp v. Bowie, which the time of the court had been OC142 Cal. 462, 76 Pac. 62. Upon these prin- cupied during this period, and from such ciples the finding herein that the board of knowledge, and its consideration thereof, supervisors did pass each and every resolu- could determine whether there had been any tion mentioned in the complaint is to be re- negligence in the prosecution of the motion. garded as the finding of a fact. The finding In the absence of any definite showing that is a negation in identical language of the the motion could have been presented or allegation in the answer of the defendant. heard at some time during this period, it “The only purpose of findings is to answer cannot be held that the mere lapse of time the questions put by the pleadings, and if is a sufficient ground to overcome the prethe facts are stated in the findings in the sumption of the proper exercise of its dissame way that they are stated in the plead- cretion by the court. ings they are sufficient. Dam v. Zink, 112 The orders appealed from are affirmed. Cal. 91, 44 Pac. 331 ; McCarthy v. Brown, 113 Cal. 15, 45 Pac. 14. See, also, City Street We concur: HALL, J.; COOPER, J. Imp. Co. v. Babcock, 139 Cal. 690, 73 Pac. 666; Rauer v. Bradbury (Cal.) 81 Pac. 1007, tiled March 16, 1906. Under the claim of

(4 Cal. A. 162) the defendant that the court erred in making

In re MAYIIEW'S ESTATE. (Civ. 233.) such finding, he very properly disregarded (Court of Appeal, Third District, California. the probative facts found by the court, and

July 23, 1906.) sought to correct the error through a mo- 1. APPEAL-NOTICE-APPEARANCE- WAIVER. tion for a new trial and a statement of the

On petition by a legatee for distribution,

conceding that it was necessary to serve notices case, in which he set forth the evidence in

of appeal on all legatees entitled to a share of reference thereto. From the evidence thus the residue remaining after petitioner's demise, set forth the aforesaid allegations in his an

the written appearance, acknowledgment of servswer are fully sustained, and it clearly ap

ice, and consent that any judgment rendered

should bind them, filed in the cause by the parpears therefrom that the board of super

ties not served, cured the omission, and gave the visors was without any jurisdiction to order appellate court jurisdiction to determine the the improvement, and that its resolution

rights of all interested parties. therefor was not duly passed. City Street

[Ed. Yote.--For cases in point, see vol. 2,

Cent. Dig. Appeal and Error, $8 2184-2190.] Imp. Co. v. Babcock, 123 Cal. 205, 55 Pac. 762; Same v. Same, 139 Cal. 690, 73 Pac.

2. EXECUTORS AND ADMINISTRATORS--Rights

OF LEGATEES-PETITION FOR DISTRIBUTION666. The court, therefore, very properly Time. granted a new trial.

Civ. Code, 8 1663, provides that any legatee The statement of the case was settled by may present his petition for distribution at the court and filed May 15, 1903. On Septem

any time after the lapse of one year from is

suance of letters testamentary. Held, that a legber 16, 1904, the plaintiff gave notice to atee was entitled to file his petition at any time the defendant of a motion to dismiss the after the lapse of one year from the issuance latter's motion for a new trial, upon the

of letters testamentary, though after the issu

ance of the letters a supplement to the will was ground that he had failed to prosecute the filed and probated as a part thereof. same with diligence, and in support of such 3. WILLS-INTERESTS CREATED-MONEY OR INmotion presented an affidavit setting forth COME THEREOF-LIFE ESTATES. the dates at which the several steps in the

Code Civ. Proc. § 1317, provides that a

will must be construed according to the intention proceeding prior thereto had been taken.

of the testator, and his intention given effect as Upon the hearing of the motion the attention far as possible. By section 1324 words are to of the court was called to the manner and

be taken in their ordinary and grammatical

sense, unless a clear intention to use them in antimes at which, under its rules, the motion

other sense can be collected, and section 1325 could have been heard, and to the periods provides that the words of a will are to receive of time since the filing of the statement

an interpretation which will give every expresduring which the court was in vacation. No

sion some effect. Testatrix's will provided: “I

direct that if my husband, M., provided he shall fact in support of the motion, or tending to survive me, be paid for his use his lifetime, the show that the motion could have been heard sum of forty thousand dollars, or if he wishes by the court, other than an inference to be he may have that much in value in whatever

or wherever he may wish. I direct that my drawn from the time that had intervened

husband shall have the use of this money or the since the filing of the statement, was pre- interest of it his lifetime. * * * I direct that sented to the court. Upon the submission whatever there may be left after my husband of the motion it was denied, and the plaintiff

has the forty thousand dollars I wish to give

him the use of that the remainder be equally has also appealed from this. order.

divided between my four children. * Í 87 P.-27

also direct that at the death of my husband is not to have forty thousand besides this that every dollar that is not used for his com

real estate, that is to be sold as soon as fort and pleasure shall be equally divided between my four children as before mentioned.

convenient and turned into money as I have As a supplement to this my last will

directed." and testament I wish to say I have deeded all The will proper was admitted to probate my real estate to my husband, * * but in

in September, 1903, and the supplement therethat I do not wish him to keep and use that as his forty thousand dollars or any part of it un

to was also probated as part of the will on less he wishes to, but that is so he can deed January, 1905. On May 29, 1905, Horace Al. the property so that it need not go into court, len Mayhew filed his petition for the disbut that he can deed to any of the children the

tribution to him of $40,000 in cash, and in same as they want it or he wants to let them have it, but my husband is not to have forty

such petition set forth the will and supplethousand besides this real estate, that is to be ment, the admission of the same to probate, sold as soon as convenient and turned into mon

the appointment and qualification of the execey as I have directed." Held, that the $40,000, and not merely the income thereof, was payable

utors, the return of the inventory showing the to the husband for his unrestricted use during value of the estate to be more than $83,000, his lifetime; any portion of such sum that re- and alleged that there were no debts, and sufmained on his death to go to the residuary leg- ficient funds of the estate in the hands of the atees.

executors to pay the said sum. He further Appeal from Superior Court, Sacramento alleged that he had notified the executors of County ; J. W. Hughes, Judge.

his election to take the $40,000, and had Petition by Horace Allen Mayhew for the tendered and executed deeds conveying the distribution to him of a certain sum as a real property to them, and persons who had legatee under the will of Mary Jane Mayhew, purchased from them. Florence A. Hardy, deceased. From the decree making distribu- a granddaughter of the deceased, and the tion, petitioner and another appeal. Motion only child of George H. Mayhew, a deceased to dismiss the appeal denied, and decree son of Mary Jane Mayhew, filed an answer modified and affirmed.

to said petition, in which she denied that pe

titioner had a right under the will to have L. T. Hatfield, for appellants. for appellants. W. F.

more than the income of $40,000 for the peGeorge and L. J. Hardy, for respondent riod of his natural life. The court filed findHardy.

ings which are in substantial accord with

the averments of the petition, save that MCLAUGHLIN, J. Mary Jane Mayhew

as a conclusion drawn from the will it died in August, 1903, leaving an olographic is found that petitioner “is entitled to will, the parts of which material to our in

have and receive of the moneys of said esquiry, read as follows: "I direct that if

tate for his use for the term of his natmy husband, Horace Allen Mayhew, provided

ural life the sum of $40,000, and on his he shall survive me, be paid for his use his

death said sum shall go to Charles P. Maylifetime, the sum of forty thousand dollars,

hew and Frank J. Mayhew, the sons, to Mary or if he wishes he may have that much in

E. Phipps, the daughter, and to Florence A. value in whatever or wherever he may wish.

Hardy, the granddaughter of the said Mary I direct that my husband shall have the use

Jane Mayhew, deceased, in equal shares." of this money or the interest of it his life

The distributive clause in the decree was time, and at his death he shall have suitable

identical with said finding, and the executors interment and his grave marked as his chil

were directed to pay petitioner said sum for dren may deem proper, provided any of them his use during the term of his natural life, shall survive him, in case they do not his with interest thereon at the legal rate from grandchildren may attend to that as they August 3, 1904. From this decree both pedeein proper. * * * I direct that whatev. titioner and Florence Hardy appeal. The er there may be left after my husband has former contends that he is entitled to have the forty thousand dollars I wish to give him said money distributed to him without rethe use of that the remainder be equally strictions, and the latter as stoutly contends divided between my four children.

that he was only entitled to the income or I also direct that at the death of my hus- interest arising from said sum during his band that every dollar that is not used for lifetime. his comfort and pleasure shall be equally The motion to dismiss the appeal of pedivided between my four children as before titioner must be denied. Conceding that it mentioned. * * * As a supplement to was necessary to serve notices of appeal on this my last will and testament I wish to say all legatees entitled to a share of the residue I have deeded all my real estate to my hus- remaining after petitioner's demise, we think band Horace Allen Mayhew, but in that I that the written appearance, acknowledgdo not wish him to keep and use that as his ment of service, and consent that any judg. forty thousand dollars or any part of it ment rendered shall bind them, filed herein unless he wishes to, but that is so he can by the parties not served, cures the omisdeed the property so that it need not go into sion, and gives this court jurisdiction to decourt, but that he can deed to any of the termine the rights of all interested parties. children the same as they want it or he Piercy v. Piercy (Cal.) 86 Pac. 507; McLean wants to let them have it, but my husband v. Schartzer, 5 Cal. 70, 63 Am. Dec. 81; 1li.

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