The herald., 1896-09-09
0U1FAA SEWER Contract
Opinion Handed Down by
Judge York
The GRIFFITH CO. VS.. The CITY
Judgment Given the Plaintiff
for $7ll.25
THE CONTRACT ANALYZED
The City to Rscoup Itself for All Neces'
sary Repairing
THE CONTRACT ANALYZED
The Legal Title TO the 5000 Always Re-
mains 10 the City
The Authority of the City Engineer Chal'
Ienged in Interpreting tae Contract.
Against Good Conscience to Use
the Sewer and Not Pay


The first official act done by Judge
York yesterday upon his retur1 from
vacation was the handing down OF An
opinion in the suit of j. M. Griffith COM
pany VS.. the City of Los Angeles.
OF the three claims made by the plain
tiff as assignee of Mansfield & Grant
against the defendant on account OF the
construction of sections and Ga of the
outfall sewer one claim of $711.23 Ia
conceded to be, says the court, due as
a balance of $3.50 retained by the city
from the amount due Mansfield d.
Grant to indemnify and save the city
harmless from all damages or suits foi
damages for use of any patent or in
fringement of patent rights. The de-
fendant, however, contends that the
plaintiff should not recover judgment
for that sum in this action for the rea-
son that the plaintiff has failed to make
demand on the city council for the pay
ment of that sum- The method of max
ing demands against the city for the
payment of claims is not specific, and
inasmuch as the requirement is in de-
rogation of the right to sue general to
all persons, it should be strictly con-
strued A demand, therefore, need not
be verified or signed. 1t is sufficient If
it notifies the city council of the nature
and amount of the claim against the
city and demands it's payment. After
the making of such demand, refusal to
pay can be presumed from the fact of
non-payment after the lapse Of a rea-
sonable time. With reference to this
claim admitted to be due, I find suffic-
lent evidence that the demand was
made and payment refused The plain
tiff is, therefore, entitled to judgment
for the sum of STILES. AS to claim
based on defendants retention of $5OUO
to repair by reason of faulty conStruc-
ton, l find for the defendant.
The evidence shows that the defects
requiring repairs were discovered with
in the six months referred to in the con-
tract, but the repairs were not COM
pleted until after that time. Plaintiff
Is entitled to recover a portion of the
$4,000 If the contract is construed as re-
Quiring the actual expenditures to be
made within the six months and the
claim for the balance was presented Or
presentation was unnecessary. On the
other hand, plaintiff cannot recover if
the contract is construed as permitting
repairs to be made after the six months
where the necessity to repair was dis
covered within the six months The
contract is not carefully constructed and
does not provide in express words for
making any repairs after the six months
and does provide that at the expiration
Of the six months the city shall pay to
Mansfield & Grant the $4,000 "or so much
thereof as has not been used for the
purpose above mentioned" But before
this provision 1t is agreed that 1.-The dis
cretion of the city council shall be final
or any portion thereof for the purposes
above mentioned" The necessity for
the repairs had been discovered, the dis
cretion of the city council had been ex-
ercised, but the repairs are not COM
pleted. The parties could not have in
tended that If the needed repairs known
to be necessary could not be made with
in the six months that in that event the
burden Of making such repairs should
be shifted from the contractors to the
taxpayers of the city of Los Angeles.
The object of the contract was to pro-
tect the city from expenditures that
might be necessary within that period
by reason of faulty construction and
not to require Of the city the perform
ance of an impossible condition or that
the city should suffer loss by reason Of
q premature acceptance of the work if
an impossible condition could not be
performed. I ascertain the intention of
the parties to be that the city should
do such repairing as should be necessa-
ry by reason of faulty construction
where such faulty construction was dis
covered within three months and that
the city should retain sufficient of said
$4,000 to do such repairing. Any other
construction of said contract would give
m unreasonable advantage to the con-
tractors. and, on the contrary, the con-
tract was made to preserve the rights
Of the city. The claim was not pre-
sented to the city before bringing this
action. Counsel for plaintiff argue
that such presentation was unnecessary
because the city held the money in trust
The question is a doubtful one. 1t is not
the same in principle as where the trust
Is certain and Independent of any con-
tract which makes the city conditional
beneficiary also of the fund. Here, under
certain circumstances, the city could
use the fund.- which It did do. The money
mad never been in the hands of the cor
tractors. The legal title to the money
had always been in the city, The ac-
tlon Is not for specific performance, but
is In the nature of damages for breach Of
contract of trust, the plaintiffs con-
tentlon being that the city retained the
moneys withheld from the contractors
when it should have transferred the
money to the plaintiff. If the court
should construe the provision of the
charter relative to the presentation OF
claims so literally as to exclude the
hcCcosily LUZ presenting the claim Under
consideration, then 1t would be difficult
to ascertain whether any claims should
be so presented. I hold that this claim
should have been presented.
The engineer seems to have decided
that the bands were extras under the
provisions of the contract and he made
q certificate accordingly. But wherein
did the city engineer derive any author
ity to construe the contract or annul
that provision therein that changes
made in the plans with the price to be
added to or deducted from the contract
price should be agreed upon between the
parties? This provision was commend
able. 1t was made to protect the city
from unnecessary expense and to en-
able the city to consider the price of the
extra work. Such provision should be
Jealously guarded and the making of
such provisions should be encouraged
rather than defeated by strained con-
structton. The doctrine of estoppel in
voked by the plaintiff against the city
L.