E. SCHWIESAU, Appellant, v. T. J. MAHON et al., Respondents, 110 Cal. 543

Temple, J. By this action it was sought to foreclose the lien of a street assessment. The court held that there was no valid contract for the work, and therefore no lien. Defendant put in evidence, at the trial, the contract entered into by the plaintiff.

By it plaintiff agreed to do all the work necessary to be done to grade Fifth street in the town of San Rafael, and to construct curbing and rock gutterways along both sides of said Fifth street, between certain points named, “All in strict accordance with the specifications hereto annexed and made a part of this contract, and also that he will furnish, at his own cost and expense, all necessary material required for the execution and completion of said work, and in full accordance with said specifications and to the satisfaction of the said superintendent of streets.” No specifications were attached to the contract, and it was shown by the evidence of the street superintendent that none had ever been attached thereto.

Plaintiff contends that, inasmuch as bids were received to do the work in accordance with the specifications, which, in the advertisement for bids, were specifically referred to, and as the superintendent of ■streets was not authorized to reduce to writing any other contract, than that made by the board, there could be no mistake as to the specifications, and, as the work ■has been done strictly in accordance with them, the objection cannot now be made. If the contract were one entered into by the taxpayer individually, there would be no answer to, this position.

But this is a proceeding to fix upon property a lien, in invitum, and it has been held that in such case every requirement that could be of benefit to the person to be charged must be complied with. It cannot be said that there is no possible benefit to the owner in having a written contract signed by the contractor. In this case the contractor was required to give a bond with sureties for the faithful performance of the contract. This bond, to be valid, must be conditioned that the contractor will perform the contract entered into by him.

Sureties are bound only and may insist upon the very letter of their contract. In this case would there be any contract by which they would be bound? The statute requires the contract to be in Writing and signed by the contractor. The contract signed does not define the work to be done, nor does it refer to any specifications in which it is described. It not only does not refer to specifications filed, but negatives such reference by express reference to those attached. It is said that the owner might have had this corrected by appeal to the board.

But an appeal to the board could not have provided the security by a written contract, and sureties for its performance without which there was no binding contract. If the assessment had been vacated and the work rejected it would not then have been in the power of the board to supply this defect. (Manning v. Den, 90 Cal. 614.) In that case Dougherty v. Hitchcock, 35 Cal. 524, was expressly affirmed, and if Chambers v. Satterlee, 40 Cal. 497, contains anything contrary to this doctrine, it was, so far, overruled in Manning v. Den, supra.

The case seems a hardship, but it must be remembered that it is a proceeding to charge one with the cost of improvements for which he has not contracted. The liability depends upon a strict compliance with the law, and not upon the equities of the claimant. The judgment and order are affirmed. McFarland, J., and Henshaw, J., concurred.