Engebretson

The plaintiff on August 22, 1917, entered into two contracts with the city of San Diego for the improvement of a portion of the Linda Vista road. The work was to commence within five days and to he completed within two hundred days. The contracts provided that the city should pay for one-half of the work and this provision was in pursuance of section 26 of the Vrooman Act, Statutes of 1889, page 170. The time for the completion of the work was extended to July 8, 1918, on which date the work was completed. On July 29, 1918, the common council of the city of San Diego authorized the payment from the general fund of the completion payment amounting to $29,086.74; $24,366.61 has been paid of this amount, and further installment of the contract price due thirty-five days after completion amounted to $19,212.95, The common council by resolution adopted August 30, 1918, authorized payment thereof out of the general fund of said city. On August 20, 1918, plaintiff filed his claim with the secretary of the auditing committee of said defendant for the balance due thereon with interest at seven per cent from July 8, 1918, on $29,086.74, less partial payments and interest on such payments…

I dissent from the judgment of reversal. To my mind, in view of our conclusion on the question of plaintiff’s right to interest, in which I entirely concur, the complaint did not state a cause of action against the city of San Diego. I think that upon the facts alleged plaintiff’s sole remedy for the collection of his claim which had been duly allowed by the council of the city was by mandate against the auditor, as was decided by the district court of appeal of the first appellate district, division one.

Sloane, J., concurred.