JACOB HEFT, Appellant, v. D. S. PAYNE, Respondent, 97 Cal. 108

Paterson, J. This is an action to foreclose the lien of a street assessment. Judgment in favor of defendant was entered in the court below on demurrer to the complaint, and plaintiff has appealed.

The work was not completed within the time named in the contract, nor within the time of any extension given; but to avoid the effect of the failure of the contractor to complete the work within such time, it is alleged that in the specifications for the work it was provided that the city (San José) should furnish a steamroller for rolling the rock used in macadamizing the street, and that the’ city, though often called upon to furnish the roller, has neglected to do so until it was too late for the contractors to perform the work within the time.

It is alleged that the contractors applied to the city council for an extension of time, but the council failed to act on the application, and that their failure to complete the work within the time allowed was due to the failure of the city to furnish the roller as provided in the contract. We think that the excuse offered for the failure to perform within the time agreed upon is insufficient. The lot-owner in such cases is in no sense a party to the contract, except as one of the public upon whose property the burden of payment for the improvement is placed.

The city does not act as his agent, to bind him personally, but in its sovereign capacity, as in matters of taxation, and the failure of the city to furnish the steam-roller is no more binding upon him than would be the failure of any other person who may have agreed to furnish the contractor with machinery, teams, or material to be used in the work required by the contract. His liability arises out of no agreement, express or implied, between him in his individual character and the street contractor.

He has nothing to say in determining whether the work shall or shall not be done by the contractor, nor, in the absence of fraud, whether the work has been done according to the contract, but he can “question the regularity of the proceeding resulting in the assessment in the same manner and upon the same principles as the validity of a tax may be questioned.” (Emery v. Bradford, 29 Cal. 84; Meuser v. Risdon, 36 Cal. 245; Dyer v.

Barstow, 50 Cal. 654.) In the second count, it is alleged that the street commissioner accepted the work and issued his warrant; that the defendant and other lot-owners appealed to the city council and filed objections; that the latter appeared and took

part in the hearing of the objections, and' expressly waived all objections which they might have by reason of the failure of the contractors to complete the work within the time fixed or any extension thereof, and stated that all they wanted was a completion of the improvement to the satisfaction of the council, and when that was accomplished no further objections would be made and the assessment for the work would be paid; that the council, relying on the good faith of said representations, set aside the assessment and warrant, and ordered further work to be done; that plaintiff, relying on the good faith of said promises, went on and completed the work to the satisfaction of the proper officers, and of said council, and the work was by resolution accepted, a new assessment made, and a warrant issued and recorded; demand for payment made, etc.

It is contended that the defendant is estopped by his representations and promise from claiming that the work was not done within the time required. But this is an action purely to foreclose alien on the land for the cost of a public improvement. There is no personal liability, and to such proceedings the doctrine of estoppel in pais has no application. (Meuser v. Risdon, 36 Cal. 245.) If there is no lien, there can be no recovery. The lot alone is liable, and if there was no lien at the time it is claimed a waiver was made, we do not see how any could have been created by the oral statements of the defendant.

Whether the alleged conduct of the defendant created any personal liability on his part to pay for a portion of the work done on the public highway is a question which we are not called upon to decide. It is claimed that the act of the city council in setting aside the first assessment and warrant, and in directing further work, operated as an extension of time. We do not think this contention is warranted by the provisions of the act under which the work was done.

It provides that “ if the owners or contractor who may have taken any contracts do not complete the same within the time limited in the contract, or within such further time as the city council may give them, the superintendent of streets shall report such delinquency to the city council, which may relet the unfinished portion of said work, after pursuing the formalities prescribed hereinbefore for the letting of the whole.” This is substantially the same provision found in other statutes, and which has been given a construction in several cases adverse to appellant’s contention. (Beveridge v.

Livingstone, 54 Cal. 56; Fanning v. Schammel, 68 Cal. 429; Dougherty v. Coffin, 69 Cal. 455; Raisch v. San Francisco, 80 Cal. 1.) The decision in Taylor v. Palmer, 31 Cal. 246, upon which appellant relies, was based upon an amendment to

section 7 of the act of 1862, passed April 25, 1863. (Stats. 1863, p. 526; Turney v. Dougherty, 53 Cal. 620; Beveridge v. Livingstone, 54 Cal. 56.) The judgment is affirmed. Harrison, J., and Garoutte, J., concurred. Hearing in Bank denied.