People v. Clark

47 Cal. 456

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 3,923
• Status: Published

Opinion

By the Court:

The judgment' must be reversed, upon the authority of Richardson v. Heydenfeldt, 46 Cal. 68. The case here is not distinguishable from that case. The notice of intention upon the part of the Board is not set forth in the complaint, but the plaintiff cannot claim a judgment in his favor except upon the presumption that such a notice, containing a proper designation of the work to be done, was given, and further presumption that the contract, as afterward awarded, substantially conformed to the description of the proposed work, as given in the notice." It appearing by the allegations of the complaint that the contract, as awarded, was for furnishing and laying new cross-walks where necessary; and repairing the street where necessary, it must be presumed that the notice of intention was fatally defective in the respect indicated.

Judgment reversed, and cause remanded for a new trial. Remittitur forthwith.