—Claiming that the defendant city had entered into an illegal contract, “Exhibit A”, the plaintiff commenced this action to have it so declared and for other relief. The municipal authorities filed a general demurrer to the plaintiff’s amended complaint. The demurrer was sustained without leave to amend and judgment was entered for the defendants. From that judgment the plaintiff has appealed. The contract claimed to be illegal is as follows:

(For convenience of reference we have numbered the paragraphs.)

In Ms complaint the plaintiff claimed that the above and foregoing contract was illegal and in violation of the provisions of section 18 of article XI of the state Constitution. That section, in part, is as follows: “No county, city, town, township, board of education, or school district, shall incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the qualified electors etc.” He did not plead the income of the city of Morgan Hill for any single year, nor did he plead the amount of the charges, fixed or otherwise, for any one year. He did use the expressions “exceeded”, “excess”, “in excess”, and kindred expressions. The defendants assert that the pleading was defective in not pleading the facts and that the words used by the pleader were but conclusions. The plaintiff replies that the defendants are mistaken. He cites and relies on Garrett v. Swanton, 216 Cal. 220 [ 13 Pac. (2d) 725 ]. The ease is not helpful. Commencing on page 225 the court said: “On information and belief plaintiffs alleged that the necessary and requisite expenditures of the city for the fiscal year from July 1, 1927, to July 1, 1928, inclusive of the total obligation of this contract, exceeded the revenue of said city of Santa Cruz for said fiscal year. This is conceded to he a fact by respondents.” (Italics ours.) It is apparent the case is not an authority in support of the plaintiff. Other eases relied on by the plaintiff did not involve questions of pleading but were addressed to the rule of law being discussed. We think the objection made by these defendants was clearly sound.

Before taking up the main contention of the plaintiff it should be noted that the charging portion of his pleading is as follows: “VII. Plaintiff alleges that the necessary and requisite expenditures of the city of Morgan Hill for the fiscal year from July 1, 1929, to July 1, 1930, inclusive of the obligations incurred pursuant to the provisions of said agreement marked ‘Exhibit A’, exceeded the income and revenue of the said city of Morgan Hill for such fiscal year; . . . ”, in excess of the available money in the treasury of said city of Morgan Hill . . . “X. The rentals and the purchase price required by said agreement ‘Exhibit A’ to be paid to the defendants, R. H. Hencken and Eleanor Hencken at the time of the executing of said agreement, May 7, 1930, exceeded the income and revenue provided for said year July 1, 1929, to July 1, 1930, ... ”, without obtaining the assent of two-thirds of the qualified electors, etc. It is not alleged that the yearly revenue for any other fiscal year was exceeded. Exhibit “A” was executed May 7, 1930. That fact created no debt as of that date. (McBean v. City of Fresno, 112 Cal. 159 [ 44 Pac. 358 , 53 Am. St. Rep. 191 , 31 L. R. A. 794].) It recites that a building is to be constructed by the lessors (paragraph 3). It also recites that the first payment will be made “when the new building will be completed” (paragraph 5). The complaint does not allege any payment to be made nor that any payment was made during the fiscal year July 1, 1929, to July 1, 1930. On the other hand it alleges that the first payment, $2,800, was made September 13, 1930. On that date the defendant city was entitled to use any balance remaining in the funds for the fiscal year 1929-1930 and to add thereto any funds available for the fiscal year 1930-1931. What was the amount of those two items is not alleged. Moreover it is perfectly clear that plaintiff’s complaint contained no allegation to the effect that the payment of $2,800 made September 13, 1930, exceeded the revenue for the year July 1, 1930, to July 1, 1931, the particular year in which said payment was made. Nor is there any allegation to the effect that when the contract was written it was contemplated or provided therein that any one of the payments to be made by the city of Morgan Hill was to be made out of the funds of said city for the fiscal year July 1, 1929, to July 1, 1930.

In making his attack the plaintiff contends the foregoing instrument is not a lease but that it is a conditional sales contract. The defendants contend that it is a lease and not a conditional sales contract. We need not pause to determine that dispute. A similar question was involved in Garrett v. Swanton, supra. On page 226 the court said: “The law is well settled in this state that instalment contracts of any kind, where the instalment payments are to be made over a period of years and are to be paid out of the ordinary revenue and income of a city, where each instalment is not in payment of the consideration furnished that year, and the total amount of said instalments when coupled with the other expenditures exceeds the yearly income, aré violative of the constitutional provision in question unless approved by a popular vote. This is so whether the contract .be denominated a mortgage, lease, or conditional sale.” (Italics ours.) The problem presented to us is not therefore whether the purported contract was a lease or a conditional sale, but it is a question as to whether the purported contract violated the provisions of section 18 of article II of the state Constitution. We have shown above that it did not do so.

Moreover the complaint does not present facts showing why a court of equity should entertain it. The plaintiff alleges that at all times he was a resident and taxpayer of the city of Morgan Hill. He knew, or in the exercise of ordinary care could have known, the transactions of the board of trustees of the defendant city. No fact is alleged showing he did not have such knowledge. The contract was executed May 7, 1930. This action was not commenced until March, 1936. In the meantime the defendant city has made payments of a total sum of $12,485. No part of those payments is alleged to be invalid excepting $2,800. The wrongful payment of that sum, if it was wrongful, was committed six years ago. The plaintiff’s cause of action, if he had one, is clearly barred by his laches. (Garrity v. Miller, 204 Cal. 454 [ 268 Pac. 622 ].)

The contract in suit was made by a municipality of the sixth class. • Every presumption is to the effect that it was legally and honestly made. The pleading that would successfully attack the contract should contain such averments as would show on the face of the pleading that the contract was invalid. That showing was not made by the plaintiff and the demurrer was properly sustained.

The judgment appealed from is affirmed.

Spence, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on July 17, 1937, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 16, 1937.