(4 Cal. App. 245)

FLINN et al. v. STRAUSS et al. (Court of Appeal, First District, California. Aug. 15, 1906.)

1. MUNICIPAL CORPORATIONS

PUBLIC IMPROVEMENTS-CONTRACTS-FORM OF BIDSAFFIDAVITS - SUFFICIENCY - SEVERAL BIDDERS.

Charter of San Francisco, art. 6, c. 1, § 16 (St. 1899, p. 289, c. 2), provides that every bid on a public improvement shall have thereon the "affidavit of the bidder" that the bid is not collusive or sham, etc. Held, that the affidavit of one of two persons uniting to make the bid does not satisfy the requirement.

2. SAME-SPECIFIC CASE.

An affidavit attached to a bid by two persons contained the purported signature of but one of them, nor was there a showing, either in the instrument or by extrinsic evidence, of the official character of the person before whom it purported to have been signed and sworn. The instrument was undated, and the name of the purported signer did not appear as affiant in the body thereof. Held not a compliance with the statute.

3. SAME SPECIAL ASSESSMENTS - ENFORCEMENT-VALIDITY OF ASSESSMENT-PRESUMPTION-CONCLUSIVENESS.

In an action to enforce the lien of a street assessment, the introduction in evidence of the warrant, assessment, and diagram, together with an affidavit of demand and nonpayment, makes merely a prima facie case, subject to be overcome by evidence of defects in the prior proceedings.

[Ed. Note. For cases in point. see vol. 36, Cent. Dig. Municipal Corporations, § 1282.] 4. SAME REBUTTING EVIDENCE-SUFFICIENCY.

In an action to enforce the lien of a street assessment, the proposal of plaintiffs, with a defective affidavit of good faith indorsed thereon, was produced from the records of the board of public works, and a deputy of that office testified that the indorsed affidavit was the one submitted by plaintiffs, and on which their contract was let and based. Held sufficient to overcome the prima facie case as to the validity of the proceedings made by plaintiffs' introduction of the warrant, assessment, and diagram, and, in the absence of further evidence, to au thorize a finding that such affidavit was the only one given upon the proposal.

Appeal from Superior Court. City and County of San Francisco; J. C. B. Hebbard, Judge.

Action by James J. Flinn and another against Gaston Strauss and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

D. H. Whittemore, for appellants. E. G. Knapp and Chapman & Knapp, for respondents.

HARRISON, P. J. Action for the foreclosure of the lien of a street assessment in San Francisco. The plaintiffs have appealed from a judgment rendered in favor of the defendants, and have presented the appeal upon the judgment roll, including a bill of exceptions.

The charter of San Francisco (article 6, c. 1, § 16, St. 1899, p. 289, c. 2) provides that all proposals for public work, including street improvements, "shall be made upon printed

forms to be prepared by the board and furnished gratuitously upon application, with a form for the affidavit hereinafter provided for printed thereon. Each bid shall have thereon the affidavit of the bidder that such bid is genuine and not collusive or sham; that he has not colluded, conspired, connived or agreed, directly or indirectly, with any other bidder or person to put in a sham bid, or that such other person shall refrain from bidding; and has not in any manner sought by collusion to secure any advantage against the city and county, or any person interested in said improvement for himself or any other person. All bids shall be clearly and distinctly written without any erasure or interlineation, and if any bid shall have an erasure or interlineation it shall not be received or considered by the board. Any contract made in violation of any of the foregoing provisions, and in case of improvements of streets, any assessment for the work done under such contract, shall be absolutely void."

The complaint herein is in the ordinary form, and alleges among other matters that the plaintiffs herein delivered to the board of public works their proposal to do the work for which it had invited sealed proposals, and that their said proposal had thereon the affidavit of each of the plaintiffs setting forth the matters required by the above provisions of the charter. Upon an issue thereon the court found that the alleged proposal "did not have therewith or thereon the affidavit as alleged, or any proper affidavit as required by law."

The bill of exceptions sets forth at length the alleged proposal of the plaintiffs for doing the work, together with the following, purporting to have been printed thereon, viz.:

Affidavit.

"State of California, City and County of San Francisco-ss: -, being first duly sworn, deposes and says: That he is the party making the foregoing proposal or bid; that this bid is genuine and not collusive or sham; that said bidder has not colluded, conspired, connived or agreed, directly or indirectly, with any other bidder or person to put in a sham bid, or that such other person shall refrain from bidding; and has not, in any manner, sought by collusion to secure any advantage against the city and county, or any person interested in said improvement, for himself or any other person.

"Jas. J. Flinn. "Subscribed and sworn to before me this day of 190-.

"H. J. Smith."

Although this instrument purports to have the signature of "Jas. J. Flinn," his name is not set forth in the body of the instrument as the affiant thereof, and the instrument itself is without date, and is not authenticated as being his affidavit by any official signature or seal. The official character of "H. J. Smith"

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.

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

(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. I'leading, §§ 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 aver

ment.

[Ed. Note.-For cases in point. see vol. 39, Cent. Dig. Pleading, §§ 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.

[Ed. 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, § 1652.1 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 COUR1-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.]

8. NEW TRIAL-MOTION TO DISMISS-DELAY. A statement of the case was settled and filed May 15, 1903, and on September 16, 1904, plaintiff gave notice of a motion to dismiss defendant's motion for a new trial for failure to prosecute with diligence. On the hearing the court's attention was called to the manner and times at which, under the rules, the motion could have been made, and to the periods of time since the filing of the statement during which the court was in vacation. Held that, in the absence of any definite showing that the motion could have been presented or heard at some time during the expired period, the mere lapse of time was insufficient to show an abuse of the trial court's discretion in refusing to dismiss the motion.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 312, 313.]

Appeal from Superior Court, City and County of San Franciso; J. C. B. Hebbard, Judge.

Action by the Pacific Paving Company against J. C. Diggins and others. From an order granting defendants a new trial, plaintiff appeals. Affirmed.

Booth & Bartnett and W. J. Bartnett, for appellant. Knight & Heggerty and Wm. M. Madden. for respondents.

HARRISON, P. J. Action upon a street assessment in San Franciso. Judgment was rendered in favor of the plaintiff against the defendant Byron Diggins, and upon the motion of the said defendant the court granted a new trial. The present appeal is from this order.

The complaint is in the ordinary form, except that there is no averment therein that the board of supervisors had passed a resolution of intention to order the improvement for which the assessment was made. In his answer thereto the defendant, for a separate and special defense to the action, alleged that the resolution ordering the work referred to in the complaint was not duly passed by the board of supervisors; that it was passed by the board November 29, 1897; that more than six months prior to said date the board passed a resolution of intention to order such work, but that within 10 days after the expiration of the time of the posting and publication of the notice thereof the owners of a majority of the frontage of the property fronting on said proposed work made and delivered to the clerk of said board a written objection and protest thereto, upon which the clerk indorsed the date of its reception by him; that no further proceedings were had in relation to the doing of said work until November 29, 1897, when it passed the aforesaid resolution ordering the work; and that the board did not, prior thereto or relative to said order, pass a resolution of intention to order said work. Upon the trial of the cause the court found that all the allegations of the complaint are true, and that the board of supervisors did duly pass each and every resolution mentioned therein. It also found the aforesaid facts specially set forth

in the answer of the defendant to be as therein alleged, and held as a conclusion of law that the plaintiff was entitled to the relief asked by it.

One of the grounds for a new trial specified by the defendant in its notice of intention therefor is the insufficiency of the evidence to justify the decision, and in the statement of the case it is specified as one of the particulars of such insufficiency that whereas, it appeared from the evidence that by reason of the protest of the property owners against the resolution of intention passed November 23, 1896, the board of supervisors ceased to have any authority to order the work, and could not order the same unless they should, after the expiration of six months, pass another resolution of intention to do so, there was no evidence that any other resolution of intention had been passed by the board, and that the finding of the court that the resolution set forth in the complaint was "duly" passed was not justified by the evidence.

The issue of fact upon which the plaintiff's right of recovery depended was whether the board of supervisors had jurisdiction to pass the resolution ordering the work to be done. The allegation in the answer that this resolution was not duly passed, which, under the provisions of section 462 of the Code of Civil Procedure, was deemed controverted by the plaintiff, presented this issue of fact to be determined by the court, and the finding of the court that it was "duly" passed

a determination that the board had jurisdiction to pass it. While the averment that an act has been "duly" performed is ordinarily but a legal conclusion, yet, in the absence of a special demurrer or objection on that ground, it will be held sufficient to authorize the court to receive evidence upon the issue; and if the parties proceed to trial without such objection, and introduce evidence upon the issue, they will not be permitted, after a decision thereon, to contend that it was not before the court for such decision (Minor v. Baldridge, 123 Cal. 187, 55 Pac. 783); especially where, as in the present case, the party making such averment supplements the same in his answer with an averment of the probative facts upon which he relies in support of his averment that the act was not duly performed. In such a case the general averment may be held to be either the ultimate fact established by the probative facts, or as merely an equivalent for the legal conclusion raised by the law upon the proof of such facts, and therefore disregarded as surplusage. If there is any conflict between the ultimate fact that is found and the probative facts which are also found, the former will ordinarily control; "and although a finding of probative facts from which the ultimate fact conclusively follows is sufficient, in the ab sence of a finding of such ultimate fact,

yet, when the ultimate (issuable) fact is found, no finding of probative facts which may tend to establish that the ultimate fact was found against the evidence can overcome the ultimate fact so found. In such case the only remedy of the party injured is to move for a new trial on the evidence. See Perry v. Quackenbush, 105 Cal. 305, 38 Pac. 740, and cases cited." Sharp v. Bowie, 142 Cal. 462, 76 Pac. 62. Upon these principles the finding herein that the board of supervisors did pass each and every resolution mentioned in the complaint is to be regarded as the finding of a fact. The finding is a negation in identical language of the allegation in the answer of the defendant. "The only purpose of findings is to answer the questions put by the pleadings, and if the facts are stated in the findings in the same way that they are stated in the pleadings they are sufficient. Dam v. Zink, 112 Cal. 91, 44 Pac. 331; McCarthy v. Brown, 113 Cal. 15, 45 Pac. 14. See, also, City Street Imp. Co. v. Babcock, 139 Cal. 690, 73 Pac. 666; Rauer v. Bradbury (Cal.) 84 Pac. 1007, filed March 16, 1906. Under the claim of the defendant that the court erred in making such finding, he very 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 he set forth the evidence in reference thereto. From the evidence thus set forth the aforesaid allegations in his answer are fully sustained, and it clearly appears therefrom that the board of supervisors was without any jurisdiction to order the improvement, and that its resolution therefor was not duly passed. City Street Imp. Co. v. Babcock, 123 Cal. 205, 55 Pac. 762; Same v. Same, 139 Cal. 690, 73 Pac. 666. The court, therefore, very properly granted a new trial.

The statement of the case was settled by the court and filed May 15, 1903. On September 16, 1904, the plaintiff gave notice to the defendant of a motion to dismiss the latter's motion for a new trial, upon the ground that he had failed to prosecute the same with diligence, and in support of such motion presented an affidavit setting forth the dates at which the several steps in the proceeding prior thereto had been taken. Upon the hearing of the motion the attention of the court was called to the manner and times at which, under its rules, the motion could have been heard, and to the periods of time since the filing of the statement during which the court was in vacation. No fact in support of the motion, or tending to show that the motion could have been heard by the court, other than an inference to be drawn from the time that had intervened since the filing of the statement, was presented to the court. Upon the submission of the motion it was denied, and the plaintiff has also appealed from this order.

87 P.-27

A motion of this nature is eminently addressed to the discretion of the court, and, unless it shall be made to affirmatively appear that there has been an abuse of discre tion, its ruling thereon will be affirmed. In addition to the matters to which the attention of the court was called, the judge had personal knowledge of the extent and manner in which the time of the court had been occupied during this period, and from such knowledge, and its consideration thereof, could determine whether there had been any negligence in the prosecution of the motion. In the absence of any definite showing that the motion could have been presented or heard at some time during this period, it cannot be held that the mere lapse of time is a sufficient ground to overcome the presumption of the proper exercise of its discretion by the court.

The orders appealed from are affirmed.

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

(4 Cal. A. 162) In re MAYIIEW'S ESTATE. (Civ. 233.) (Court of Appeal, Third District, California. July 23, 1906.)

1. APPEAL

NOTICE-APPEARANCE-WAIVER.

On petition by a legatee for distribution, conceding that it was necessary to serve notices of appeal on all legatees entitled to a share of the residue remaining after petitioner's demise, the written appearance, acknowledgment of service, and consent that any judgment rendered should bind them, filed in the cause by the parties not served, cured the omission, and gave the appellate court jurisdiction to determine the rights of all interested parties.

[Ed. Note.-For cases in point, see vol. 2. Cent. Dig. Appeal and Error, §§ 2184-2190.] 2. EXECUTORS AND ADMINISTRATORS-RIGHTS OF LEGATEES-PETITION FOR DISTRIBUTIONTIME.

Civ. Code, § 1663, provides that any legatee may present his petition for distribution at any time after the lapse of one year from issuance of letters testamentary. Held, that a legatee was entitled to file his petition at any time after the lapse of one year from the issuance of letters testamentary, though after the issuance of the letters a supplement to the will was filed and probated as a part thereof.

3. WILLS-INTERESTS CREATED-MONEY OR INCOME THEREOF-LIFE ESTATES.

Code Civ. Proc. § 1317, provides that a will must be construed according to the intention of the testator, and his intention given effect as far as possible. By section 1324 words are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and section 1325 provides that the words of a will are to receive an interpretation which will give every expression some effect. Testatrix's will provided: "I direct that if my husband, M., provided he shall survive me, be paid for his use his lifetime, the sum of forty thousand dollars, or if he wishes he may have that much in value in whatever or wherever he may wish. I direct that my husband shall have the use of this money or the interest of it his lifetime. * * * I direct that whatever there may be left after my husband has the forty thousand dollars I wish to give him the use of that the remainder be equally divided between my four children. * I

also direct that at the death of my husband that every dollar that is not used for his comfort and pleasure shall be equally divided between my four children as before mentioned.

As a supplement to this my last will and testament I wish to say I have deeded all my real estate to my husband, *** but in that I do not wish him to keep and use that as his forty thousand dollars or any part of it unless he wishes to, but that is so he can deed the property so that it need not go into court, but that he can deed to any of the children the same as they want it or he wants to let them have it, but my husband is not to have forty thousand besides this real estate, that is to be sold as soon as convenient and turned into money as I have directed." Held, that the $40,000, and not merely the income thereof, was payable to the husband for his unrestricted use during his lifetime; any portion of such sum that remained on his death to go to the residuary leg

atees.

is not to have forty thousand besides this real estate, that is to be sold as soon as convenient and turned into money as I have directed."

The will proper was admitted to probate in September, 1903, and the supplement thereto was also probated as part of the will on January, 1905. On May 29, 1905, Horace Allen Mayhew filed his petition for the distribution to him of $40,000 in cash, and in such petition set forth the will and supplement, the admission of the same to probate, the appointment and qualification of the executors, the return of the inventory showing the value of the estate to be more than $85,000, and alleged that there were no debts, and sufficient funds of the estate in the hands of the executors to pay the said sum. He further

Petition by Horace Allen Mayhew for the distribution to him of a certain sum as a legatee under the will of Mary Jane Mayhew, deceased. From the decree making distribution, petitioner and another appeal. Motion to dismiss the appeal denied, and decree modified and affirmed.

L. T. Hatfield, for appellants. W. F. George and L. J. Hardy, for respondent Hardy.

MCLAUGHLIN, J. Mary Jane Mayhew died in August, 1903, leaving an olographic will, the parts of which material to our inquiry, read as follows: "I direct that if my husband, Horace Allen Mayhew, provided he shall survive me, be paid for his use his lifetime, the sum of forty thousand dollars, or if he wishes he may have that much in value in whatever or wherever he may wish. I direct that my husband shall have the use of this money or the interest of it his lifetime, and at his death he shall have suitable interment and his grave marked as his children may deem proper, provided any of them shall survive him, in case they do not his grandchildren may attend to that as they deem proper. * ** I direct that whatever there may be left after my husband has the forty thousand dollars I wish to give him the use of that the remainder be equally divided between my four children.

I also direct that at the death of my husband that every dollar that is not used for his comfort and pleasure shall be equally divided between my four children as before mentioned. *** As a supplement to this my last will and testament I wish to say I have deeded all my real estate to my husband Horace Allen Mayhew, but in that I do not wish him to keep and use that as his forty thousand dollars or any part of it unless he wishes to, but that is so he can deed the property so that it need not go into court, but that he can deed to any of the children the same as they want it or he wants to let them have it, but my husband

his election to take the $40,000, and had tendered and executed deeds conveying the real property to them, and persons who had purchased from them. Florence A. Hardy, a granddaughter of the deceased, and the only child of George H. Mayhew, a deceased son of Mary Jane Mayhew, filed an answer to said petition, in which she denied that petitioner had a right under the will to have more than the income of $40,000 for the period of his natural life. The court filed findings which are in substantial accord with the averments of the petition, save that as a conclusion drawn from the will it is found that petitioner "is entitled to have and receive of the moneys of said estate for his use for the term of his natural life the sum of $40,000, and on his death said sum shall go to Charles P. Mayhew and Frank J. Mayhew, the sons, to Mary E. Phipps, the daughter, and to Florence A. Hardy, the granddaughter of the said Mary Jane Mayhew, deceased, in equal shares." The distributive clause in the decree was identical with said finding, and the executors were directed to pay petitioner said sum for his use during the term of his natural life, with interest thereon at the legal rate from August 3, 1904. From this decree both petitioner and Florence Hardy appeal. The former contends that he is entitled to have said money distributed to him without restrictions, and the latter as stoutly contends that he was only entitled to the income or interest arising from said sum during his lifetime.

The motion to dismiss the appeal of petitioner must be denied. Conceding that it was necessary to serve notices of appeal on all legatees entitled to a share of the residue remaining after petitioner's demise, we think that the written appearance, acknowledgment of service, and consent that any judg ment rendered shall bind them, filed herein by the parties not served, cures the omission, and gives this court jurisdiction to determine the rights of all interested parties. Piercy v. Piercy (Cal.) 86 Pac. 507; McLean v. Schartzer, 5 Cal. 70, 63 Am. Dec. 84; Ii