Woollacott v. Meekin

ANGELLOTTI, J. This is an action by twelve persons owning separate lots of land in the city of Los Angeles to obtain a decree declaring void and annulling a certain assessment upon their land for street work done on Mott Street in said city and the bonds issued thereon constituting a lien on said land. Judgment was given in favor of plaintiffs, and defendant appeals therefrom. Upon 'the question as to the validity of the assessment and bonds it will be necessary to notice but one of the objections of plaintiffs. The street work done consisted of the grading and graveling of a portion of Mott Street, and the construction therein of a cement curb, a redwood curb, a cement sidewalk, *703 and a cobble-paved gutter. The various proceedings of the city officials, from and including the resolution of intention to and including the contract for the work, provided that the work should be done in accordance with certain described specifications on file in the office of the city clerk of said city. By reference, these specifications were expressly made a part of the contract, and this inclusion of such specifications as' a part of the contract was of course authorized by the reference thereto in the anterior proceedings. The specifications so referred to in all the proceedings were separate specifications-for the different kinds of work. Each of these specifications-contained the following provisions:— “All loss or damage arising from the nature of the work to-be done under this agreement, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from any encumbrances on the lines of the work, or for any act or omission on the part of the contractor, or any person or agent employed by him, not authorized by this agreement, shall be sustained by the contractor. . . “The contractor shall indemnify and save harmless the city of Los Angeles from all suits and actions of every name and description, brought against it for, or on account of any damages received or sustained by any party or parties, or by or from any of the acts of or anything done by said contractor, his servants or agents in the prosecution of said work.” ' (The italics are ours.) These two provisions were in no way connected, and were apparently separate and independent stipulations. The question as to the effect on the assessment and bonds of the italicized portion of the first of these provisions is determined by the decision of this court in Blochman v. Spreckels, 135 Cal. 662, [67 Pac. 1061], and Goldtree v. Spreckels, 135 Cal. 666, [67 Pac. 1091]. These were actions to restrain a purchaser at sales made on bonds issued on an assessment for street work in the city of Coronado, from applying for a deed, and to quiet the owner’s title as against such sales. There was an ordinance of the city providing that the work 1 ‘ shall be done in accordance with the following specifications, ’ ’ which ordinance was held to constitute a part of the contract for the work. That ordinance, after specifying the manner *704 of doing the work and the materials to be used, provided, among other things, as follows: “All loss or damage arising from the nature of the work to be done under these specifications shall be sustained by the contractor.” It will be observed that the only difference between this and the italicized portion of the provision in the case at bar is in the use of the words “these specifications” instead of “this agreement.” This difference in verbiage is clearly immaterial. The provisions are substantially the same,' and necessarily mean the same thing, unless the connection in which they are used makes a difference. There was also a provision in the cases cited that the contractor “shall hold the city harmless for any and all suits for damages arising out of the construction of said improvements.” This court held that while a fair construction of the other provisions might warrant a conclusion that they referred only to damages resulting from the negligence of the contractor in prosecuting the work, the provision as to loss or damage arising from the nature of the work had a broader meaning, and included practically any damage for which the city would be liable which might originate “in the nature of the' work to be done. ’ ’ It was held, citing Brown v. Jenks, 98 Cal. 10, [32 Pac. 701], and Alameda Macadamizing Co. v. Pringle, 130 Cal. 226, 80 Am. St. Rep. 124, [62 Pac. 394], that such a provision was not only unauthorized by statute, but that it imposed conditions naturally tending to increase the cost of the work and increase the burden of the property-owner, and the judgments giving the owners the relief sought on account of the invalidity of the assessment and bonds were affirmed. So far as the question as to the proper construction of the provision under discussion is concerned, there is no material difference between the case at bar and the cases of Blochman v. Spreckels, 135 Cal. 662, [67 Pac. 1061], and Goldtree v. Spreckels, 135 Cal. 666, [67 Pac. 1091], The added clauses present in the case at bar in no degree tend to affect the force or meaning of what is clearly a separate and independent provision as to the loss or damage arising from the nature of the work to he done. The words “which may be encountered in the prosecution of the same” can be read only as applicable to the clause “or from any unforeseen obstruction or difficulties” immediately preceding. The sec *705 ond provision in the case at bar is obviously a separate and distinct provision, having no reference to the provision relating to damages arising from the nature of the work, and in no degree affecting the meaning thereof. No principle of construction would justify the conclusion that this provision was intended to detract from the effect of the former .provision and relieve from the burden thereby imposed. There is no merit in the contention that the unauthorized provision was not a “specification” as to the materials to be used, and the manner of doing the work, and therefore was not included in the reference to the specifications made in the preliminary proceedings. Whether or not the provision is in strictness a “specification,” it was a part of each of the documents on file referred to, entitled simply “Specifications No. 68, for the construction of graveled streets in the city of Los Angeles,” “Specifications No. 54, for the construction of cement curbs in the city of Los Angeles,” etc., and was manifestly included in that term, both in the documents entitled “Specifications” and the references thereto, just as it was in the ordinance involved in the Spreckels cases above cited. (See, also, Brown v. Jenks, 98 Cal. 10, [32 Pac. 701].) It is apparent that unless the decisions in Blochman v. Spreckels, 135 Cal. 662, [67 Pac. 1061], and Goldtree v. Spreckels, 135 Cal. 666, [67 Pac. 1091], are to be overruled, the assessment and bonds here involved must be held void. While those cases were decided in Department, the decisions were practically by the court in Bank, for Blochman v. Spreckels was decided by Department One," and Goldlree v. Spreckels was decided on the same day, on the authority of the Blochman case, by Department Two. All of the then justices of this court except the chief justice then gave their adherence to the views there expressed, and applications for a rehearing in Bank were denied. These decisions, given February 28, 1902, constitute a rule of property declared by this court, upon the faith of which we must assume parties have acted in their dealings in regard to lands. The construction. given by these decisions to the provision in question was certainly a permissible one. Under these circumstances, we would not feel warranted in overruling such decisions, even if we felt that a different construction might have been given to that provision. It is to be noted in this *706 connection that the proceedings for the street work here involved were inaugurated by the city of Los Angeles nearly one year after the decisions above referred to. A demurrer was interposed to the complaint in the court below and overruled. We have deferred consideration of the points made relative to this ruling, as they can be disposed of more briefly in the light of the knowledge afforded by what we have said as to the merits of the case. It was urged by the demurrer that there is a misjoinder of parties plaintiff and causes of action, in that several owners of separate lots of land, not claiming under a common source of title, are joined in an action to have the assessment and bonds issued thereunder, constituting liens on the several parcels, declared void. It is unnecessary to consider the argument of learned counsel for plaintiffs in support of this joinder. Assuming for the purposes of this decision that there was a misjoinder, it is apparent that no substantial right of the defendant was affected thereby. Defendant’s claim as to each and all of the lots was based entirely upon the validity of the legal proceedings, common to all the lots, leading up to the assessment. Those proceedings were, as we have seen, ineffectual for any purpose and void. No prejudice could possibly result to defendant from having that question determined in a single proceeding maintained by the different owners. On the contrary, in at least one respect, such a course was manifestly to his advantage,—namely, in the matter of costs and attorney’s fees. It seems to be thoroughly settled that a judgment after trial upon the merits will not be reversed because the court improperly overruled a demurrer on the ground of misjoinder of parties, where it is plain that such misjoinder did not affect any substantial right of a party. (See Daly v. Ruddell, 137 Cal. 671, 674, [70 Pac. 784] ; Hirshfeld v. Weill, 121 Cal. 13, 15, [53 Pac. 402] ; Asevado v. Orr, 100 Cal. 293, 300, [34 Pac. 777] ; Reynolds v. Lincoln, 71 Cal. 183, 185, [9 Pac. 176, 12 Pac. 449].) This is but an application of the rule declared by section 475 of the Code of Civil Procedure, that the court must disregard errors and improper rulings not affecting the substantial rights of the parties. It is urged that the complaint is fatally defective in that there is no allegation that plaintiffs ever offered to pay what *707 the street improvements were reasonably worth to their lots. It is said that they cannot have the equitable relief sought without doing equity. The equitable maxim thus invoked has no application under the facts shown by the complaint. We have here proceedings for street work, had, presumably, without the consent of the landowner, which were void ab initio. They could not serve as a sufficient foundation for any assessment, and for this reason the entire assessment was void. It cannot be held upon the facts shown that there was any moral obligation on the part of the owner to pay any part of such an invalid assessment. The mere fact that the street work called for by the invalid proceedings and contract has been' done does not create such a moral obligation. The case in this respect is the same as Chase v. Treasurer etc., 122 Cal. 540, [55 Pac. 414], where it was held in an action by the owner to restrain a sale on such a bond that, as the entire assessment was void and there was no tax to be tendered, no tender was essential to the maintenance of the action. The case here does not fall within the doctrine of the cases cited by defendant, nor within that of the later cases (not cited) of Ellis v. Witmer, 134 Cal. 249, [66 Pac. 301], and Couts v. Cornell, 147 Cal. 560, [109 Am. St. Rep. 168, 82 Pac. 194], in the latter of which the application of the maxim relied upon is fully discussed. There is no merit in the claim that if the assessment and bonds are void they cast no cloud upon the title of plaintiffs. The invalidity is not apparent upon an inspection merely of the assessment, warrant, and diagram, and the bonds, which constitute prima facie evidence of the validity of the proceedings, and the owners of the land, in any action founded upon a deed issued in proceedings to enforce the lien of the bonds, would be required to offer evidence to defeat a recovery. The precise point here made was made in Chase v. Treasurer etc., 122 Cal. 540, [55 Pac. 414], and decided against the contention of defendant. There is no other point requiring consideration. The judgment is affirmed. Sloss, J., McFarland, J., and Henshaw, J., concurred. Beatty, C. J., dissented.