McCaleb

This is an action to foreclose liens upon an assessment for sewer work. Judgment passed for the plaintiff:, and the defendant property-owner appeals.

1. The specifications for the work provided that “if, in the judgment of the city engineer, it shall be necessary to form any portion of said foundation (of the sewer) of concrete, said concrete shall be paid for as extra work at the price per cubic yard mentioned in the contract.” This language forms the foundation of the principal attack made by appellant. He insists that, under the authority of Bolton v. Gilleran, 105 Cal. 244 , [ 45 Am. St. Rep. 33 , 38 Pac. 881 ], and Perine v. Pasadena, 116 Cal. 6 , [ 47 Pac. 777 ], there is by these words conferred upon the city engineer the discretionary power at will to increase or decrease the cost of the work to the property-owner, and that a contract which so permits is void. The underlying principle in Bolton v. Gilleran is indubitably sound, and that is, that where the nature of the work permits a predetermination of its actual cost, such predetermination shall be made by the council in awarding the contract, and no improper discretionary power shall be left with the street…