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True v. Fox

155 Cal. 534 Court Cal. Decision date 1909-05-17 Docket L. A. No. 2271 English

Decision Majority — THE COURT. · Dissent — BEATTY, C. J., and SHAW, J.

Contents

Majority

p. 534
[L. A. No. 2271.
In Bank.
May 17, 1909.]
BELLA M. TRUE, Respondent, v. E. R. FOX, Appellant, and CHARLES S. STANSBURY, Co-Defendant.

Headnote

Street Improvement—Void Contract, Assessment, and Bond—Damage from Nature of Work.—A provision in a contract for a street improvement requiring the work to be done under specifications which provided that “all loss or damage arising from the nature of the work to be done under this agreement . . . shall be sustained by the contractor,” renders the contract, assessment, and bond issued under the assessment void, and vitiates all subsequent proceedings.
Id..—Action to Cancel Bond and Enjoin Application for Deed.—An action will lie to cancel the bond issued upon such street assessment, and to enjoin application for a deed pursuant to a treasurer’s sale thereunder.
APPEAL from a judgment of the Superior Court of Los Angeles County. Walter Bordwell, Judge.
The judgment cancels the bond held by the defendant, E. R. Fox and enjoins him from applying for a deed of plaintiff’s property under a sale by the county treasurer for delinquency under the bond.
E. R. Fox, Appellant, w, pro. per.
Elon G. Galusha, for Respondent.

This is an action to cancel a bond issued upon a street assessment and to enjoin the execution of a deed pursuant to a sale ip. the proceedings. Judgment was given for the plaintiff cancelling the bond. The defendant Fox appeals.

The contract for the street improvement in question required the work to be done under specifications which provided that “All loss or damage arising from the nature of the work to be done under this agreement . . . shall be sustained by the contractor.” The presence of this stipulation, in a street-improvement contract, has been held to render the assessment and all subsequent proceedings therein void, in repeated decisions of this court. (Blochman v. Spreckels, 135

Dissent

p. 535
Cal. 665 , 67 Pac. 1061 ]; Goldtree v. Spreckels, 135 Cal. 673 , [ 67 Pac. 1091 ]; Woollacott v. Meekin, 151 Cal. 701 , [ 91 Pac. 612 ]; Van Loenen v. Gillespie, 152 Cal. 222 , [ 96 Pac. 87 ]; Hatch v. Nevills, 152 Cal. 16 , [ 95 Pac. 43 ]; Stansbury v. Poindexter, 154 Cal. 769 , [ 99 Pac. 182 ].)

Upon the authority of those decisions and upon the reasons stated therein, the judgment is affirmed.

Lorigan, J., did not participate in the foregoing decision.

We dissent from the judgment for the reasons given in the dissenting opinion in Woollacott v. Meekin, 151 Cal. 708 , [ 91 Pac. 612 ].

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