Heft

This is an action to foreclose the lien of a street assessment. Judgment in favor of defendant was entered in the court below on demurrer to the complaint, and plaintiff has appealed.

The work was not completed within the time named in the contract, nor within the time of any extension given; but to avoid the effect of the failure of the contractor to complete the work within such time, it is alleged that in the specifications for the work it was provided that the city (San José) should furnish a steamroller for rolling the rock used in macadamizing the street, and that the’ city, though often called upon to furnish the roller, has neglected to do so until it was too late for the contractors to perform the work within the time. It is alleged that the contractors applied to the city council for an extension of time, but the council failed to act on the application, and that their failure to complete the work within the time allowed was due to the failure of the city to furnish the roller as provided in the contract.

We think that the excuse offered for the failure to perform within the time agreed upon is insufficient. The lot-owner in such cases is in no sense a party to the…