I concur in the judgment,

and in all material particulars in the opinion of Justice Shaw. The following observations are added only for the purpose of emphasizing the importance of limiting more carefully than has been done in some of the cases followed by the superior court, the application of the principle established by the decision in Brown v. Jenks, 98 Cal. 10 , [ 32 Pac. 701 ]. It was there held, and I think correctly held, that a contract for street paving to be binding upon abutting owners, must not impose upon the contractor the duty of keeping the pavement in repair after completion of his contract and acceptance of the work; and this upon the ground that the necessary effect of such a contract would be to impose upon abutting owners the cost of insuring against defects inherent in the plan and specifications of the work—a liability not contemplated by the statute. It was a mistake in my opinion to apply this principle in deciding the case of Blochman v. Spreckels, because the contract there in question would easily have borne a construction limiting the liability imposed upon the contractor to the risks assumed by him in undertaking the work, and to the consequences of his own negligence in carrying it out—a construction to be preferred to one which rendered the contract invalid. I dissented from the decision in that and a companion case, and ever since have hoped to see them overruled, being entirely convinced that they and the whole line of decisions in which they have been followed, so far from subserving the policy they were designed to promote have simply tended to subvert it. Instead of encouraging competition among contractors bidding upon such improvements, the effect has been to diminish competition and to lay upon abutting owners a heavier, and in many cases, an intolerable burden. This serious and growing evil, I think, requires the courts to limit as strictly as possible the doctrine of Blochman v. Spreckels in its application to the construction of contracts differing in language from that which was there construed. I thought, and still think, this might have been done in Woolacott v. Meekin, and despite that precedent I think it may be done in this case.

In the argument some stress has been laid upon the fact that the Hanford ordinance was passed two years after the decision in Blochman v. Spreckels, and the work here in question ordered nearly two years later; from which it is inferred, that contractors generally, being aware of the infirmity in the resolution of intention, order for the work, and contract, failed to compete in the bidding, with the result that the price at which the contract was awarded was excessive in proportion to the risks they supposed to be involved. This may, in fact, have been so, but it is a sounder legal inference that the city council of Hanford, being aware at the time its ordinance was adopted of the unfortunate consequences resulting from the wording of the San Diego ordinance, deliberately chose a different phraseology for the express purpose of invoking a different and more beneficial construction. I think myself that there is a difference sufficient to exempt this ease (in which the contract was made and performed before the decision in Woolacott v. Meekin), from the rule of stare decisis.