Donnelly v. Howard

60 Cal. 291, 1882 Cal. LEXIS 448

Opinion

The Court:

Action to enforce a lien for a street assessment in San Francisco. The defense is that there was included in the assessment, as well as in the demand, a charge of fourteen cents per front foot, amounting in the aggregate to sixteen dollars and eighty cents, for work done which was not authorized by the resolution of intention or the invitation for sealed proposals. The plaintiff meets this defense by the argument that it was the duty of the defendant to appeal to the Board of Supervisors, and that was his only remedy. We do not think so. It was held in Dyer v. Chase, 52 Cal. 440, that the demand must be for the amount properly chargeable against the lot. The Court there say that “ the plaintiff is not entitled to recover unless he proves a demand for the amount legally due for the work,” and that case was followed by this Court in Schirmer v. Hoyt, 54 Cal. 280.

We see no reason to depart from the rule there laid down.

Judgment and order affirmed.