(2 Cal. Unrep. 483) AH GOON v. TARPEY and others. (No. 8,633.) Filed June 3, 1885. ALLEGATION AND PROOF-IMMATERIAL VARIANCE. Reversal is not warranted by variances between allegations and proof which are immaterial, if no one is misled thereby. Department 2. Appeal from the superior court of the city and county of San Francisco. A. A. Moore and Moore & Reed, for appellants. T. C. Van Ness, for respondent. BY THE COURT. 1. The difference in the names Ah Yak and Ah Jack; also as to whether the men were employed to be paid one dollar, or a dollar and a quarter, or a dollar and a half; and the statement in the assignment that the contract was with the Melrose Smelting & Refining Works,-if variances, were immaterial, and misled no Section 469, Code Civil Proc. one. 2. The court did not err in striking out that portion of the answer relating to garnishment; it contained no defense to the action stated in the complaint. Judgment and order affirmed. (2 Cal. Unrep. 484) O'CONNOR and others v. FLYNN. (No. 8,947.) Filed June 3, 1885. ERROR WITHOUT PREJUDICE, IMMATERIAL. Reversal is not warranted by error which is favorable to the appellant. Department 2. Appeal from the superior court of the city and county of San Francisco. The decision on a prior appeal is reported in 57 Cal. 293. Sawyer & Ball and M. G. Cobb, for appellants. Jos. W. Winans, for respondent. SHARPSTEIN, J. On the former appeal this court directed the court below to order an accounting, and with great minuteness directed in what manner the account should be taken. From that direction the only deviation which we have been able to discover was made in the interest of appellants. Judgment and order affirmed. MCGEE v. CITY OF SAN JOSE. (No. 8,203.)1 Filed May 28, 1885. CONTRACT FOR PUBLIC WORK IN SAN JOSE-MANNER OF PAYMENT FOR WORK. Where a contractor agreed to do public work for the city of San Jose, and that the terms of payment therefor should be in accordance with the act of March 17, 1874, (Cal.,) reincorporating said city, and, subsequent to entering into said contract, such act was amended so as to provide that laborers and material-men, for such work, shall, within a specified time after acceptance of the work, present their claims to the city clerk, and, if the same are undisputed. shall be paid therefor from the amount due the contractor, and laborers and others under such contractor did file their claims as so provided, and the plaintiff contractor indorsed them as correct, with the exception of certain of said claims which he disputed, and the allowed claims were so paid, and the balance due contractor (with the exception of an amount sufficient to satisfy the disputed claims if they should prove good) was paid to him, such statutory amendment thereby became part of such contract, and plaintiff, by so indorsing such claims, authorized the city to pay them, and waived his right to receive the money therefor; and the city, by paying said claimants and retaining such balance to abide a contest as to their validity, was discharged from further liability on such contract. Department 1. Appeal from the superior court of Santa Clara county. Houghton & Reynolds, for appellant. D. W. Herrington, for respondent. MCKEE, J. The plaintiff in the action in hand claims that he entered into a contract with the city of San Jose to grade, gravel, and curb, according to certain plans and specifications adopted by the common council of the city, one of its public streets, and to satisfactorily complete the same on or before the first day of February, 1878, for which the city promised to pay him, after acceptance of the work, the sum of $3,400. In his complaint he avers that the work was completed to the satisfaction of the city, and that the city accepted the same, but refused to pay therefor the compensation provided by the contract, or any part thereof, except a certain sum, which, being allowed, there remains a balance due and unpaid, for which he demands judgment. In its answer to the complaint the city admitted that the contract was executed as set forth in the complaint, but it denied that it "obligated itself" to pay for the same, and averred that it had fully performed the contract on its part according to the charter. At the trial it was admitted that the officer by whom the contract was executed on the part of the city was the qualified street commissioner of the city of San Jose; that, as such officer, he had authority to execute, and executed, the contract in suit; that the contract was, after it had been made by the officer, approved and confirmed by the city in the mode prescribed by the charter: that the work contracted for was completed, not within the time fixed by the contract, but within time extended for that purpose by the common council of the 1 Reversed in banc. See 8 Pac. 41, 68 Cal. 91. city; and that, after the work was completed, the city approved of the same and accepted it. Upon these admissions the plaintiff was entitled to receive for his work compensation according to the terms of the contract under which he had performed it, for the contract was within the scope and powers conferred on the city by its charter. In the exercise of these powers, the common council, in its own discretion, or upon the petition of three-fifths of the owners of the property fronting on any street of the city to be improved, could order the improvement of the street to be made, according to plans and specifications of its approval and adoption, and direct the street commissioner of the city to contract with the lowest responsible bidder for the performance of the work, and, after approval of the contract, which the commissioner might make, it could provide for the cost of the work by assessments upon the real property fronting on the street, enforce collection of the same, and have it paid into the general fund of the city treasury to meet the cost and expenses of the improvement. Sections 19, 21, Charter of San Jose. Assuming, therefore, the facts as admitted at the trial, that the contract in suit was authorized, approved, and confirmed by the council; that the contractor had, in performance of it, completed the work, and that the city had accepted it,-the legal presumption arose that all the steps prescribed by the charter, by which authority was given to enter into the contract, were taken to make the authority effectual, and that the authority was exercised by the officials of the city in a legal and authorized manner, (Argenti v. San Francisco, 16 Cal. 282;) and as the work was performed to the satisfaction of the city, and the city accepted it, the contractor was entitled to receive the compensation, and the city became liable to pay it, according to the terms of the contract. It is well settled, "when the legislature has invested the corporation with the power to improve streets, and raise the money to pay the costs of such improvement by an assessment, and persons have, on the faith of this power and the stipulations of the corporation, performed the contract, and the contractor has become entitled to the consideration, there is a contract obligation to pay, valid in all respects, that may be enforced." Argenti v. San Francisco, supra; Goodale v. Fennell, 27 Ohio St. 426. And the city is liable to pay, under its contract, to the same extent and in the same manner as a private corporation or a natural person. Dill. Mun. Corp. § 749. Now, the contractual obligation assumed by the defendant was contained in the following terms of the contract, namely: "In consideration of said work the party of the second part (that is to say, the contractor) shall be entitled to receive, have, and recover from the city of San Jose the said sum of $3,400,-70 per cent. in gold and 30 per cent. in silver, in the manner prescribed by law, and in accordance with an act of the legislature of the state of California, entitled 'An act to reincorporate the city of San Jose, approved March 17, 1884.'" The obligation of the city was, therefore, to pay in the manner prescribed by the charter. At the date of the contract section 22 of the charter read as follows: "If the work shall be accepted by the commissioner of streets, the city engineer, and the chairman of the street committee, the mayor and common council shall, at the next regular meeting after said acceptance, draw a warrant upon the general fund in favor of the contractor for the amount due upon such contract; but no warrant shall be drawn or liability created until such written acceptance is duly filed." But on the thirtieth of March, 1878, the section was amended as follows: "Whenever any such work is accepted, the city clerk shall, upon the filing of said certificate of acceptance as aforesaid, give notice thereof by publication for five consecutive days in some daily newspaper, printed and published in the city of San Jose. Said notice shall state the amount due by said city for said work, and that warrants will be drawn for the payment of the same at the next regular or special meeting of the mayor and common council, and that within said time all laborers or persons furnishing materials,-performing labor or furnishing materials used in the performance of the contract for the improvement of such street,-may file with the city clerk a statement of their claims for labor or materials so furnished; and if said accounts or statements so filed are undisputed by the contractor, warrants shall be drawn therefor, in favor of the persons presenting such claims, to the extent of the contract price, or so much thereof as may then be due said contractor from said city. If the aggregate of the claims so filed with the city clerk amounts to more than the contract price for said work, or the amount then due from said city to said contractor, then, and in that case, the warrants shall be drawn in favor of the persons filing said claims, so that each person shall receive his pro rata share of the amount due the contractor from said city, and said payments shall be made to such persons so filing claims in preference to any claim due to said contractor, or to any assignee from him. If said claims so filed, or any one of them, are disputed by said contractor, the amount thereof shall be retained by the city treasurer until the same shall be adjudicated in a court having competent jurisdiction. All warrants under this section shall be drawn on the general fund, but no warrant shall be drawn, or liability created, until such written acceptance is duly filed." Written acceptance of the work was filed, as prescribed by the charter, on the twenty-ninth of July, 1878. On that day the liability of the city accrued, and, under the provisions of the charter, the city undertook to discharge its obligation. For that purpose it caused notice to be given, as required by the charter, and, pursuant to the notice, certain assignees of the contractor, and some laborers, subcontractors, and material-men, who had done work for and furnished the contractor with materials, which he used in the performance of his contract, filed claims for the amount of $. Of these claims, those of the assignees, and 12 of the claims of laborers, subcontractors, and material-men, were undisputed. The contractor examined the 12 claims, and under his own signature indorsed each one "correct." The others he disputed. The undisputed claims were allowed by the council, and ordered paid; the disputed claims were not al lowed. Upon the allowed claims warrants were issued to the claim ants for the sum of $1,423.75, which were presented to the treasurer and paid. Warrants were also issued to the contractor himself for the sum of $1,513.05, which were paid. These payments left due a balance of about $700, which the council ordered to be retained in the city treasury to abide the judicial determination of an action which, the contractor admitted, was pending between some of the disputed claimants and himself. By examining and indorsing as "correct" the undisputed claims. filed against him, we think the contractor himself authorized the city authorities to pay them to the claimants, and waived his right to receive the money therefor, and that in paying them to the claimants, and in retaining the balance in the city treasury to abide the adjudication of proceedings pending between the disputed claimants and the contractor, the city discharged its liability upon the contract; for the charter was a part of the contract. The contractor knew that the city, in the execution and performance of the contract, could act only according to the corporate powers conferred upon it for those purposes, and he contracted to do the work knowing that he could only receive compensation for it from the city in the manner prescribed by the charter; and as compensation was awarded to him in the manner prescribed by the charter under which the work was completed, there was no enforceable liability against the city upon the contract. Judgment and order affirmed. We concur: Ross, J.; McKINSTRY, J. (67 Cal. 89) MYERS v. REINSTEIN and others. (No. 8,730.) Filed May 29, 1885. RESULTING TRUST, ACTION TO ESTABLISH-EVIDENCE. In an action against the representatives and devisees of an alleged trustee, to establish a resulting trust in land, by an assignee, the assignor and alleged original cestui que trust may testify as to transactions between himself and the trustee prior to the death of such trustee; and, such action not being based on a claim or demand against the estate of a decedent, such evidence is not made inadmissible by statute. Section 1880, Code Civil Proc. Cal. Department 2. Appeal from the superior court of the city and county of San Francisco. J. B. Reinstein, for appellant. Horace Haws, for respondent. THORNTON, J. This action was brought to establish a resulting trust in a parcel of land claimed to have been purchased by S. H. Collins and M. Reinstein,-the latter, testator of defendants O. Reinstein and A. Vaenberg,-when partners, and paid for with partnership funds. The parcel had been conveyed to M. Reinstein. The action |