the statute authorizing re-advertising and reletting in such case. [Dougherty v. Foley, 32 Cal. 403.] In this case the court, per Shafter, J., said: "The board having acquired jurisdiction in the manner pointed out in the fourth section of the act of 1862 [statutes 1862, p. 392], ordered the work to be done. This order was in the nature of a judg ment. The subsequent steps were ministerial in their character. They were taken for the purpose of carrying the order into execution. The failure of the contractor to perform his contract could not on any known principle affect the validity nor impair the efficiency of the order. If the contract had been kept, the order would have been functus officio; but as it was not kept the requirement that the work should be done' stood unexecuted, and mandatory as ever. The work having been ordered, the process of doing it was by contract. When the contract failed by the bad faith of the man who made it, the case stood as it would if no contract had ever been made, and the statute process could be repeated upon the unexecuted order." [See also Himmelmann v. Oliver, 34 Cal. 246.1

* * *

If the contractor, or the owners who take the contract, fail to perform any part of it, and the council re-advertises for proposals, and relets the contract, or if in any case where it is proper, proposals are re-advertised for, the same course must be pursued which is prescribed in the first instance for letting the contract, in so far as the proceedings subsequent to the order for doing the work are concerned. Therefore, as in the first instance, it is necessary that the council should pass a resolution or order directing the clerk to post and publish the notices inviting proposals, it follows that if, in re-advertising for sealed proposals, the clerk posts and publishes such notices without a resolution or order by the council therefor, the posting and publishing are insufficient and the proceedings are therefore void. [Meuser v. Risdon, 36 Cal. 239.]

(3.) Lot Owners Taking Contract. The owners of threefourths of the frontage, or their agents, who shall make oath that they are such owners or agents, may, without presenting sealed proposals or bids, and within ten days after the first posting and publication of the notice of the award of the contract to the successful bidder, elect to take the work and enter into a contract to do it at the same price at which it was awarded.

(4.) Bond Accompanying Contract. All contractors, contracting owners included are, by the act, required to give a bond, at the time of executing the contract, conditioned for

the faithful performance of the contract, the bond to be to the satisfaction and approval of the superintendent of

streets.

It was held in Miller v. Mayo, 88 Cal. 568, that the property owner, in an action to foreclose a lien for street assessment can not object to the correctness of the assessment by reason of the omission of the superintendent of streets to approve the bond of the contractor.

7. Assignment of Contract. A contract to perform street work may be assigned, and the contract may be fulfilled by the assignee, who can enforce the same. [Taylor v. Palmer, 31 Cal. 241.] These street work contracts do not belong to that class of contracts which the party who is to perform. the stipulated work is not permitted to assign by reason of the trust and confidence reposed in his skill and ability by the other contracting party. [Id.]

Where a contract is thus assigned and the assignee does the work, the warrant running to the original contractor, his agents or assigns, may be issued and delivered to the original contractor, and the demand for payment may be made by him. In such case the original contractor acts as the agent of his assignee. [Id.]

If a lot owner takes the contract and then assigns it to some one else, who performs the contract, the assignee may sue his assignor-the lot owner and original contractor for the assessment against his lot, and it cannot be objected that the lot owner, as contractor, cannot sue himself as lot owner upon a contract made with himself, and that therefore his assignee cannot sue him. The reason is that the contractor or his assignee does not sue upon the contract, but takes the place of the city in suing to recover the tax levied or assessed upon the lots to pay for the improvement. A triangular relation exists between the city, the contractor and the lot owner. The city government and the contractor are the only parties to the proceeding so far as making the improvement is concerned. The adjoining property holders are not parties to the contract. The improvement being done, the city government acts alone in its political capacity in apportioning and levying the tax; but when provision is made for the collection of the tax the city gov ernment steps out of the triangle, and the contractor is thrust into her place and made her agent for the collection of the tax. [Hendrick v. Crowley, 31 Cal. 472.] In case of an assignment of the contract, a debt due to a property owner from the contractor agreed to be set off by the latter, cannot be set off against the contractor's assignee by

whom the whole work was done without notice of the agreement. [Himmelmann v. Reay, 38 Cal. 163.] In this case the contractor agreed with one of the property owners whose property was assessed to pay for the improvement, and to whom the contractor was indebted, that the contractor's debt to the property owner might be credited by the amount of the property owner's assessment. Before any work was done by the contractor he assigned his contract to another who did the work. The assignee of the contractor after doing the work, assigned his claim to the plaintiff. Neither the plaintiff nor his assignor who did the work the assignee of the contractor-had any notice of the agreement between the property owner and the contractor. In an action by plaintiff against defendant, the property owner, for the amount of his assessment, it was held that the indebtedness from the contractor to the defendant furnished no ground for a counter claim.

If certain of the property owners take the contract, and after they have done the work and the assessment is made, assign all their right and title in the contract and in the assessment, warrant and diagram, and all the moneys due and to grow due thereon, they are estopped to deny the validity of the contract and of the assessment. [Callender v. Patterson, 66 Cal. 356.]

SECTION 6. The superintendent of streets is hereby authorized, in his official capacity, to make all written contracts, and receive all bonds authorized by this act, and to do any other act, either express or implied, that pertains to the street department under this act; and he shall fix the time for the commencement, which shall not be more than fifteen days from the date of the contract, and for the completion of the work under all contracts entered into by him, which work shall be prosecuted with diligence from day to day thereafter to completion, and he may extend the time so fixed from time to time, under the direction of the city council. The work provided for in section 2 of this act, must, in all cases, be done under the direction and to the satisfaction of the superintendent of streets, and the materials used shall comply with the specifications and be to the satisfaction of said superintendent of streets, and all contracts made therefor must contain a provision to that effect, and also express notice, that, in no case, except where it is otherwise provided in this act, will the city, or any officer thereof, be liable for any portion of the expense, nor for any delinquency of persons or property assessed. The city council may, by ordinance, prescribe general rules directing the superintendent of streets and the contractor as to the materials to be used, and the mode of executing the work, under all contracts thereafter made. The assessment and apportionment of the expenses of all such work or improvement shall be made by the superintendent of streets in the mode herein provided. [Statutes 1885, p. 151.]

[Section 6 of the act of March 18, 1885, never has been amended.]

Section 6 of the act expressly directs the superintendent to insert four certain provisions in the written contract, viz: (1.) A provision fixing the time for the commencement and completion of the work; (2.) a provision that the work shall be done under his direction and to his satisfaction; (3.) that the materials used shall comply with the speci fications and be to the satisfaction of the superintendent of streets, and (4.) that, in no case, except where it is otherwise provided in the act, will the city or any officer thereof be liable for any portion of the expense, nor for any delinquency of persons or property assessed. These four provisions must be inserted in the contract or else it will be void. [Supra, page 52; Libby v. Ellsworth, 97 Cal. 316; Washburn v. Lyons, 97 Cal. 314.] But the contract need not follow the precise language of the statute, the call of the statute will be satisfied if the contract "can be held to contain the condition in question by a fair and reasonable construction." [Taylor v. Palmer, 31 Cal. 240; Emery v. S. F. Gas Co., 28 Cal. 346, 377.]

Section 6 likewise empowers the superintendent of streets as follows:

1. To make all written contracts and receive all bonds, and to do any other act, either express or implied, that pertains to the street department. The clause, authorizing the superintendent of streets "to do any other act, either express or implied, that pertains to the street department," received a construction in Donnelly v. Tillman, 47 Cal. 40, where it was held that it is the intention of the statute that the council should have all the authority in respect to the improvement of streets, which is granted by the statute, but which is not conferred expressly or by necessary implication upon some of the officers mentioned in the statute, and that the statute only grants to the superintendent of streets power over such acts as relate to the business of the street department.

2. Section 6 likewise authorizes the superintendent of streets to extend the time fixed for the completion of the work, from time to time, "under the direction of the city council." The superintendent has no authority to grant an extension of time except "under the direction of the city council," i, e., pursuant to an order or resolution of the council granting an extension, and the extension, if granted, must be granted during the life of the contract, i. e., before the time for completion has run out. If not granted during the life of the contract the assessment is void. [Dougherty v. Coffin, 69 Cal. 454; Fanning Schammel, 68 Cal. 428; Beveridge v. Livingstone, 54 Cal.

54; Mappa v. Los Angeles, 61 Cal. 309; Turney v. Dougherty, 53 Cal. 619.] The fact that the extension was made. with knowledge that the work had not been finished, and that upon the faith thereof the contractor expended money in good faith to complete the contract, cannot cure the invalidity of the extension. [Raisch v. San Francisco, 80 Cal. 1; Dougherty v. Nevada Bank, 81 Cal. 162.] The extension must be granted by the council during the life of the contract, and if, during this time, the council grants the extension, the extension will be valid even if the ministerial acts which the statute requires of the superintendent to be done in this connection, be not done. McVary v. Boyd, 89 Cal. 304, where it was held that a failure of the superintendent of streets to endorse upon. the original contract any extension of time properly granted by the board of supervisors-under the act of 1872-or to cause the resolution of extension to be recorded until after the period fixed by the contract, does not render the extension ineffectual. [See Ede v. Knight, 93 Cal. 159; Brock v. Luning, 89 Cal. 316.] The extension will be sufficient if, by an application of the maxim id certum est quod certum reddi potest it can be sufficiently seen that the resolution of extension points to the particular contract in question. Thus, if the resolution of extension refer to the contract by number and specify the streets and the work to be done as described in the contract, it will not be invalidated because of an error in naming the contractor. [Anderson v. De Urioste, 96 Cal. 404.] If the work is not completed within the time mentioned in the contract, or within the time provided for by regular extension, granted during the life of the contract, the assessment will be void and the fact that the city failed to furnish a steam roller as provided in the specifications, and that therefore the contractor could not complete the work in time, will not prevent the assessment from being void. [Heft v. Payne, 97 Cal. 108.]

3. Section 6 likewise empowers the superintendent of streets to make the assessment and apportion the expense in the mode provided by the act.

The next section (section 7 of the act) provides the rules in accordance with which the assessments are to be made, and section 8 prescribes the form of the assessment. [Vide sections 7 and 8 and the notes thereto.]